Terminology

Terminology

 

Important technical terms

 

State

 

A territory which constitutes an independent sovereign polity (political unit).

 

The public institutions which together comprise the political and administrative organisation of the state.

 

Sovereign

 

‘Ultimate’ power - Power which is not delegated from anywhere or anyone else.

 

Elect

 

To ‘elect’ is to select and place someone into office by means of a ballot. A ballot is a system of voting.

 

Franchise –

 

The right to vote.

 

Electorate –

 

The people who possess the franchise.

 

Appoint –

 

The exercise of selecting and placing someone in an office (official position). This is NOT done by election but by the use of a discretionary power, exercised by an individual or a body. 

 

Convention –

 

Custom, when used in the constitutional context, one that almost has the status of a legal rule, but cannot be legally enforced.

 

 

Forms of Government

 

Monarchy:-

 

State ruled by a monarch (absolute monarchy)

 

or

 

State where a monarch is head of state without ruling or taking part in government - (constitutional monarchy).

 

Dictatorship:- ‘dictator’ – Republican Roman official - appointed in a crisis - hold total power for six months. Office later abused – Sulla and Caesar.

 

In modern times - ‘dictatorship’ - a state governed by a dictator with absolute power unrestricted by a constitution or law (tyranny).

 

Oligarchy:-

 

Government by a small group of people.

 

Plutocracy –

 

State ruled by the wealthy - an oligarchy of the wealthy.

 

Kleptocracy –

 

State characterised by corruption amongst those in power. / Corruption becomes endemic and part of the normal social order.

 

Totalitarianism –

 

‘Total’ or overwhelming control by the state, of public and private behaviour.  Usually found in extreme right and left wing governmental systems, - fascism and communism

 

Pluralism –

 

The affirmation and acceptance of diversity.

 

Republic:-

 

Essentially any state which is not a monarchy;

 

But is often associated with democratic principles;-  rule of the people or elected representatives.

 

Democracy:-

 

Government of the people – A political unit governed ultimately by all its members.

 

·         direct / representative

 

·         liberal / socialist

 

‘Social liberals’

 

uphold personal liberties and a free market / believe that democracy can only be secured if the state intervenes with social services.

 

‘Socialist democracy’

 

Imprecise term - wide range of political theories,

 

Left of centre social liberalism to far left communist ideology. 

More left-wing - suspicious of opposition politics and capitalism / favours market control and other aspects of communism. 

 

Fascism –

 

System characterised by populism, exultation of the state and nationalism.

 

Exalts nation and often race above the individual;

Centralised autocratic government headed by a dictatorial leader;

Severe economic and social regimentation

Forcible suppression of opposition."

Totalitarian and usually militaristic,

Often espouses social Darwinism in the form of the ‘survival of the fittest.’

Opposed to communism, anarchism and liberalism

 

Communism –

 

Advocacy of a classless society

Private ownership is abolished

Means of production and subsistence belong to the community, represented by the state.

Considers history in terms of a class struggle resulting in the eventual victory of the proletariat. 

Result of centralist policies is invariably totalitarian, with varying degrees of compulsion and a loss of personal freedoms.

 

   

 

 

The inherent vice of capitalism is the uneven division of blessings, while the inherent virtue of socialism is the equal division of misery.

 

                                                                                                Winston Spencer Churchill

 

 

 

 

 

Basic Concepts of Constitutional Law

 

De Vos et al (2014) South African Constitutional Law – In Context: OUP pages 37-97.  

Currie I & de Waal J (2001) The New Constitutional and Administrative Law Vol 1 Cape Town: Juta – pages 1-38.

 

Constitutionalism 

1.         What is constitutionalism? 

·         Refers to the theory of constitutional law – descriptive definition – limited government by prescribing powers & procedures – akin to original limited rule of law concept.

·         More recently - regarded as the body of theoretical prescriptions – it prescribes what a constitution or constitutional law should do as opposed to describing what a particular constitution does.

·         Limits government and majorities and sets values.

·         Liberal constitutions are based on the constitutional philosophy that prescribes that a Constitution must structure & constrain (limit) state power and that of the electoral majority – counter-majoritarian dilemma.

·         SA Constitution is based on this model.

                        A contradiction or paradox exists:

o  The Constitution must ensure that the State has enough power to govern;

o  But it must also ensure that it does not violate the law or the human rights of citizens – individual rights.

2.         Westminster constitutionalism 

·           No formal constitution in the sense of a document or group of documents.

·           It does have a constitutional law – set of rules/laws bound together by conventions, - resulting in a body of law.

·           Evolved over a period of time.

·           Developed gradually & progressively and unplanned.

Has influenced development of constitution in many other states – former British colonies, including SA’s first constitution

2.1       Constitutional monarchy

o   Monarch’s power no longer absolute.

o   Limited by the constitution.

o   No legislative powers – no right to veto Parliamentary legislation.

o   Executive power is limited by law.

o   Judicial power transferred to courts.

o   Queen is a non-partisan head of State – ceremonial duties.

2.2       Parliamentary supremacy

·           Monarchy replaced by Parliament – dominant organ of state since the 18^th century.

·           Parliament can make or unmake law whatsoever – parliamentary omni-competence.

·           No other body can set aside legislation made by Parliament – Parliamentary monopoly.

·           All other bodies are subordinate to parliament.

·           No substantive constraints on the power of Parliament. (Bar European Union agreements and institutions.)

·           There are procedural constraints.

·           Also convention and norms of British society which has a long history of upholding rights.

What prevents parliament from being a tyrant? According to Dicey:-

o   The fact that it comprises of elected representatives – people have elected them.

o   Societal norms and expectations

·           This concept has had an important and negative influence on SA’s constitutional history.

 

2.3       Parliamentary government

·           After general elections queen calls on leader of majority party in House of Commons to form a government. (In other countries using a Parliamentary system, Parliament selects the Prime Minister by other methods).

·           Prime Minister & cabinet form the executive.

·           Executive is accountable to Parliament.

 

·           Note – Parliamentary government can still exist-

o   separate from institutions such as the monarchy, and

o   together with a sovereign constitution instead of Parliamentary sovereignty.

 

2.4       Judicial Independence

·           Originally judges had no independence from the monarch – exercised their power in the name of the king and judicial authority was delegated to them from him.

·           By 17^th century – courts had begun to assert their independence – Judge Coke.

·           Act of Settlement 1701 – landmark in development of judicial independence in Westminster systems – improved the position of judges.

·         Modern Westminster systems – judicial independence secured through many mechanisms:-

o   Judges appointed by executive, but after informal consultation with the bench;

o   Judge cannot be removed from office except by resolution of both houses of Parliament & only on grounds of unfitness or misconduct;

o   Remuneration of judges fixed by law – cannot reduce a judges salary during tenure;

o   Restrictions on the right to bring legal proceedings against judges;

o   Contempt of court – protects court from public denigration.

 

·         Judicial independence now an established feature.

 

2.5       Representative government & the party system

·           Representative government is an old concept in the UK. It began in 1265 CE – but franchise was qualified. Also, poor constituency boundary demarcation developed in 18^th century, leading to ‘rotten boroughs’.

·           19^th century – franchise was extended (but only extended to women in 1918) plus constituency reform.

·           Party system arose at the end of the 18^th century.

·           Resulted in 2 predominant parties.

 

3.            American constitutionalism

·           The US Constitution is regarded as a social contract – state’s power is only legitimate to the extent that it derives from the consent of the people (social contract theory – an example of 18^th century ‘Enlightenment’ thought.)

·           The 1787 Constitution resulted in the unification of 13 states. The Constitution was the product of a deliberate process.

·           Delegates from each state drafted the document at a convention.

·           They assumed they were representative of ‘the people’, although they were possibly more representative of the land-owning class. Nevertheless, this was always a larger and more egalitarian group in North America than it had ever been in Britain or Europe.

3.1       Separation of powers

·           The theory of ‘Separation of Powers’ postulates that the three main state powers of legislation (making law) executive action (carrying out the law and administering the state) and adjudication (resolving legal disputes) should not be performed by the same person or organ of state.

·           This separation had developed in England and existed de facto by at least the beginning of the 17^th century. However, its development had occurred due to chance and circumstance rather than any intentional planning or theory.

·           The concept was first articulated by Montesque in the early 18^th century as a theory and he used England as his model.

·           The idea underpinning the concept was that state power should not be concentrated in the hands of one individual or set of individuals, and that the rights of citizens could best be protected if different if not competing persons or bodies had control of each type of state power.

·           It is the most significant constitutional mechanism of the modern era designed to limit state power.

·           It is a fundamental feature of American constitutionalism.

·           The US constitution provides for almost complete Separation of Powers.

·           As a result, for instance, members of the US executive, - the President and Cabinet may not also be members of the US legislature, - the US Congress.

3.2         Checks and balances

·           The concept of ‘checks and balances’ was a novel concept first introduced in the US Constitution and superimposed on Separation of Powers. 

·           It makes limited inroads into the separation of function, if not separation of powers, in that each organ of state needs the support of another organ of state for certain functions to be carried out.

·           For instance, the President has the authority to appoint Federal Judges but his appointments need the approval and confirmation of the US Senate.

·           The South African Constitution does not provide for this sort of division of function although many jurists and lawyers have claimed mistakenly that it does. What they usually have in mind are the various provisions and state organs such as the ‘Chapter Nine Institutions’, which exercise an oversight role. Oversight of the executive and the administration of state is not an example of checks and balances, however, and at best can be described as a ‘check’ without the balance as it does not involve a shared function.

Note therefore, – though often mentioned together, checks and balances are not an attribute of separation of powers and are not automatically present whenever separation of powers is in place.

3.2       Judicial review

·           Power of courts to enforce constitution

 

3.3       Constitutional Supremacy

·           Constitution will prevail over all other legal or political actions of government

·           Constitution is supreme – sovereignty

·           Contrast to parliamentary supremacy

·           Constitutional supremacy can be maintained only because the provisions of the Constitution are justiciable (enforceable) by the courts

4.            Rule of Law

The Rule of Law is one of the fundamental principles of modern constitutionalism, as it removes the possibility of those in authority acting arbitrarily in whatever manner they please. Their actions have to be in accordance with the law.

Dicey formulated the classic theory of the Rule of Law, asserting that it includes three elements:-

a)    Law is supreme – public power may only be exercised in accordance with authority conferred by law, and not arbitrarily.

b)  All are equal before the law – law must be applied equally to everyone irrespective of status. Also, everyone without exception should be subject to the jurisdiction of the ordinary courts.

c)  The ordinary courts are responsible for enforcing the ordinary law of the land (the ordinary law consisting of common law and statutes). Whilst certain courts might have jurisdiction over particular types of disputes, they should be open to all such cases. Special secret courts designed for particular persons should never be used.

Two approaches have developed with regard to the Rule of Law:-

•      Formal approach. In this instance the Rule of Law is assumed to be observed, provided the law is followed when the authorities act. This means that the substance of whatever law is being applied, whether good or bad, has no relevance. This approach has been criticised and characterised as the Rule of Law being equated to Rule by Law.

 

•      Substantive approach – In this instance, the Rule of Law is not viewed as being value free, but is considered to be supportive of positive rights.  This includes justice and the principle that a prejudicial law should be interpreted and limited as far as possible in the best interest of anyone it affects. 

•      SA Constitution

o  The Rule of Law has been incorporated into the South African Constitution as a founding value – Section 1(c). In this it ranks alongside other founding principles of the Constitution such as constitutional supremacy -

Prof De Vos suggests that it has same status as German basic law ‘Rechtsstaat’ concept, but not the same content.

o  Given the Bill of Rights would seem to protect rights better than the Rule of Law did in the past, the necessity of including it as a founding principle was questioned in some quarters at first. Therefore, is it necessary?

 

o  Yes – Rule of Law has more general application than the Bill of Rights. It can be used in far more situations and in particular can be used in the public interest when human rights are not involved. In fact it has often been used in litigation against the Executive to challenge executive action on basis of the legality of this action, where administrative action is inapplicable to the issue in dispute. This would include the appointment, for instance, of inappropriate persons to high public office. One of the aspects of the Rule of law is ‘legality’ which carries with it certain prerequisites, such as the need for executive action to be rational and in keeping with the purpose for which the authority was given. Legality is the concept which has been used to challenge executive action in such instances.

 

Basic Concepts - Constitutions

1.    What is a constitution?

The word constitution is used in 2 different contexts:

o   Abstract context - refers to ‘the system of laws, customs and conventions which define the composition and powers of organs of the state, and regulate the relations of the various state organs to one another and to the private citizen’.

o   Concrete context - refers to ‘a document which sets out the distribution of powers between, and the principle functions of, a state’s organs of government’.

·         Modern Constitutions perform several functions:

o   Provide a legal framework for the operation of government;

o   Define the ultimate sources of legal authority;

o   Provide the foundations of the public law system – it is the ‘law behind the law’;

o   Serves as a source of legitimacy for the state & its activities;

o   Indicates the political & legal parameters of the individual’s interaction with the state;

o   Operates as a manifesto – a confession of faith and aspiration;

o   Establishes the government, the administration & other organs of state;

o   Confers power on the various organs, institutions and officers of state;

o   Indicates which bodies should resolve conflicts;

o   Provides procedures & standards for dispute resolution.

2.         What is Constitutional law? 

·           The body of normative rules that determine & regulate the structure of the principal organs of government, their relationship to one another, their essential functions & the relationship between the individual citizen & the state.

·           The cornerstone of any legal system because these rules identify the law making authorities themselves (legislature), the courts & various administrative authorities.

3.         What do constitutions contain? 

·           The contents of the constitutions of different states differ as a result of the different cultural, political & historical circumstances which prevail when they come into being;

·           This note will concentrate on the type of constitution which general exists in modern democratic states;

·           Some of the more general contents can be listed as follows:

o   Preamble;

o   Indication of the structure of the institutions of state, together with their powers and functions, ie – ‘map’ or chart of the state system;

o   Amending provision;

o   Usually these days, a Bill of Rights;

o   Financial provisions.

 

Preamble 

·           Serves as an introduction to the constitution;

·           Symbolical & ideological purposes;

·           No legal significance per se, but sometimes used for interpreting other constitutional provisions in the light of the values it espouses;

·           It usually espouses values & principles, for instance; – democracy, human rights, justice & equality.

‘Chart’ of the state system 

·           Akin to an organisational chart (in substance if not form);

·           Includes matters of both substance (powers, functions and area of responsibility) & procedures (for using those powers);

·           Most importantly among the institutions it describes, it describes the legislature, executive & the judiciary. 

Amending provision 

·           Amendment allows the present generation to modify the constitutional rules it inherited;

·           Most modern constitutions are ‘rigid’ or at least partially so in the sense that they are difficult to amend. Because a constitution is a founding document setting out the principles on which a society is based, it should not be easy to amend. Society should not be driven by passing fashions and fads. Therefore when amendments occur, it should only be because an overwhelming majority are in favour of change.

·           There are different ways in which amendments can occur; but it is usually the legislature which amends a constitution by passing an amendment.  Usually a higher voting majority is required than for the passing of ordinary legislation. In fact the US Constitution even provides two different methods, one of which has never been used because it involves each US State voting individually for an amendment, which is unwieldy. Nevertheless, the more conventional method (requiring a 2/3 majority vote in each of the two houses in Congress) still needs ratification from each State.

·           Sometimes there are different amending procedures for different constitutional provisions in the same constitution. For instance the SA Constitution provides for several different voting procedures and majorities, depending on which provision is to be amended. All the provisions in the South African Constitution can be amended, although some are more difficult to amend than others. Section 1 containing the founding provisions is the most difficult to amend.

·           Some constitutions contain provisions which cannot be changed at all. For instance any provisions of the Indian Constitution which affect its ‘basic structure’ – (the equivalent of the South African founding provisions in section one of the SA Constitution) may not be amended.

·           Informal amendment can also occur through the courts. As the courts interpret the implications and effect of the various provisions, new meanings can develop and be attributed to the original provisions. A good example in South Africa is the Constitutional Court’s interpretation of the right to life in section 11 as excluding the death penalty.

Bill of Rights 

·           Normally the limit to public power is set out in the Bill of Rights (although other provisions which indicate how public power needs to be used to so too).

·           A ‘Bill of Rights’ is a list of fundamental rights conferred on the members of society by the constitution, which the state cannot or should not violate.

·           The contents of bills of right vary widely from constitution to constitution.

·           The foundational rights in a liberal society are the civil & political rights, referred to traditionally as ‘liberties’. The prime liberty is freedom of speech.

·           Socio-Economic Rights – These are the ‘second generation’ rights which have only recently begun to appear in constitutions and do not appear in all bills of rights. They would include the right to access to housing, education or health care. They are sometimes referred to as ‘pink’ rights to highlight their somewhat socialist nature.

Financial Provisions 

·           Financial provisions deal with the supervision of the national budget, and do not appear in all constitutions.

·           They may include rules for generating revenue – principles for imposing custom duties, tax, or sales tax, etc.

·           There might also be formula for determining the distribution of revenue. This will usually deal with how the money should be divided between national government and provinces rather than how it will be spent.

Constitutions also need to provide other information

·           For politicians it must:

o   Describe procedures & processes which must be followed for officials to be elected to office

o   Provide an indication of their functions as well as authorisation for their actions while in office and the legal parameters in which they must operate.

·           For citizens it should describe:

o   Their rights.

o   The conditions for political participation in various institutions.

o   The remedies for the enforcement of human rights.

o   For the Constitutional Lawyer it should reveal the juridical basis of the constitutional legal system.

 

4.         How constitutions emerge? 

·           Usually emerge from a critical historical point in the development of a country:

 

o   Colonisation;

o   Revolution;

o   Independence;

o   Unification of separate territories;

o   Dissolution of a political entity;

o   Break from the institutions of the past.

·           Political leaders initiate a fresh start by drawing up a constitution which establishes a new system of government – prescribes how governance should operate in the future – eg - SA history.

 

·           Drafting & implementation are vital to the success/failure of a constitution

·           Could be imposed by a dominant group through force & coercion

·           Some are drafted after consultation – varying degrees

·           Shift from the past – Kings were sovereign – ruling through power obtained by God

·           Modern thinking – popular sovereignty – power vests in the people & exercised through elected reps

·           Hence constitutions should not be imposed – government for the people by the people

·           They have to be adopted by the people

·           A body which represents the people drafts the document – variety of names:-

o   National convention

o   Constituent assembly

o   Constitutional assembly (SA)

·           Political & social history determines to what extent  it adopts constitutional norms from the past, or attempts to form a wholly new form of government in reaction to the past.

5.      CLASSIFICATIONS OF CONSTITUTIONS

·         Written & unwritten

o   UK – only modern state with an unwritten constitution – although some aspects are regulated by legislation. 

·         Flexible & inflexible

o   Inflexible – rigid – difficult to change/amend

Certain aspects can be completely inflexible – Basic Structure Doctrine in India - can change details only.

·         Single & multi-document

o   Most constitutions are contained in one document.

o   But can be supported by other laws, common or satute, to give effect to constitutional principles. 

·         Autochtonous & alloctonous

o   Autochtonous – home-grown.

o   Alloctonous – foreign.

 

·         Technical & Ideological

o   Technical – absence of values or ideology

o   Ideological – pursues certain values & principles

6.     SOURCES OF CONSTITUTIONS

·           Constitutional has the same sources as any other branch of law:

o   Legislation

o   Common law (Custom)

o   Customary law

o   Case law

Legislation

·           Regarded as the most important source of constitutional law.

·           Legislation refers to generally applicable rules of law made by the legislature.

·           The constitution is the most important statutory source of constitutional law.

It is an internationally accepted norm for a state to have a constitution – constitution is seen as a symbol of statehood.

Common Law/Custom

·           Custom or ‘convention’ is of far less scope & significance than statutory law.

·           Custom still applicable in South Africa is British in origin – South African constitutional law was based on British common law – however, much custom is now enacted. But in the case of a lacuna guidance from former conventions or the common law is still applicable, provided the underlying constitutional principles have not changed.

·           Current constitution – some elements of British origin remain:

o   Majority government

o   Separation of Powers

o   Parliamentary System and oversight of Executive

·           Parliamentary sovereignty & any other remaining British conventions have been abandoned

Customary Law

·           A unique concept featured in the Interim South African Constitution of 1993 – Ubuntu - which emanates from the customary laws of the land. It is not mentioned in the 1996 Constitution.

·           Ubuntu - recognises a person’s status as a human being, entitled to unconditional respect, dignity, value & acceptance from the members of the community.

·           Conversely the person has a duty to give the same respect, dignity, value & acceptance to each member of the community.

·           Nevertheless, its precise meaning is open to debate as many definitions have been aired.

·           Although it has featured in case law, its actual legal effect is unclear if not questionable. At best it may be used to assist in the interpretation of other constitutional provisions, however, its omission from the 1996 constitution places doubt on even that role.

·           Nevertheless, it continues to be mentioned in constitutional jurisprudence (cases) and its importance seems to be generally accepted although arguably subject to challenge.

Case Law

·         In the past, South African case law was an extremely limited source of constitutional law.

·         Situation has changed drastically since 1994 and the jurisprudence on South African constitutional law has exploded exponentially.