CSL2601 Constitutional Law
LU 2 Basic concepts
(Chapters 2 & 3 of textbook)
Characteristics of constitutionalism:
• First, constitutionalism is concerned with the formal and legal distribution of power
within a given political community.
• Second, constitutionalism provides for the establishment of the institutions of
governance.
• Third, constitutionalism brings about the creation of binding rules or laws for the
regulation of the political community, its institutions of governance and the governed.
• Fourth, constitutionalism plays an important role in determining the nature and basis of
relations that exist between institutions of governance and those they govern.
• Last, constitutionalism prescribes limits on the exercise of state power and provides
mechanisms to ensure that the exercise of power does not exceed the limits set by the
constitution.
− A constitution must allocate power to various branches of government AND limit
and disperse that power to ensure that it will not be abused.
− Constitutionalism seeks to provide a factual description of the institutions,
procedures and structures that make up the constitutional system of a particular
state.
− Constitutionalism demands that a particular constitutional system adhere to the
following norms and principles: separation of powers; the rule of law; democratic
self-government; the protection of human rights; and the existence of an
independent judiciary.
− Three constitutional models: Westminster constitutional model (unwritten), United
States (US) constitutional model and the German model.
The British Constitution is a series of conventions and
ordinary laws in the form of statutes, common law and
case law that broadly regulate state power as well as
the relations between the state and its citizens.
At the heart of the Westminster model is the legislative
branch, namely Parliament.
In Britain there is no fundamental law which cannot be altered by ordinary parliamentary
action and there is no bill of rights which denies Parliament the power to destroy or
curtail liberties. Parliament is said to have the power to make any law on any subject.
, o Another notable feature of this constitutional model is the formal separation
between the head of state and the head of government.
o Feature of the Westminster constitutional model – parliamentary government.
o Parliamentary government means that the executive branch of government,
namely the Prime Minister and the Cabinet, are all drawn from and continue to be
Members of Parliament.
o The effect of this limitation on the courts’ powers is that it makes them
institutionally less powerful than the legislature.
o The Westminster constitutional model demands that the judiciary be independent.
This has necessitated the inclusion of mechanisms that seek to guarantee judicial
independence, including the following:
• First, judicial independence is guaranteed by way of security of tenure that
requires that judges are appointed for life.
• Second, judges cannot be removed from their judicial office except where they are
found to have contravened the law or otherwise engaged in serious misconduct.
• Third, judges’ salaries are guaranteed and cannot be reduced while their tenure
continues.
USA constitutional system = longest-surviving
US Constitution divided power along two lines.
Level 1: a two-tier federal state with a central federal
government
Level 2: state governments
❖ This federal division of power resulted in certain specified powers and functions
being allocated to the national federal government.
❖ The remainder or residue of powers and functions was left to the states which
came together to form a ‘more perfect union’.
❖ Federalism serves as an important limitation on an overly powerful central
government. At the same time, it promotes diversity and local autonomy by
allowing each state to deal with many of the day-to-day issues affecting its
citizens.
❖ The US constitutional model provides for the most stringent separation in respect
of the branches, their functions, and personnel.
❖ The US model introduced a system of checks and balances.
While the legislative branch enjoys the power to legislate, this power is subject to the
presidential veto.
,Presidential veto - the President can block legislation from coming into force despite the
legislature having passed it.
The overriding importance of judicial review is that for a constitutional system premised
on the doctrine of constitutional supremacy and providing for a bill of rights to have
excluded powers of judicial review would have weakened the system immensely.
Reason: there would otherwise be no politically non-partisan organ of state charged
with upholding and enforcing the constitution.
In terms of Rechtsstaat, the Constitution is established
as the higher law with which all other laws and state
conduct must comply.
Rechtsstaat is closely linked to the notion of the rule of
law (legal must be clear and enforced equally).
Major feature of the German constitutional model: it established Germany as a social
state.
The German constitutional model also incorporates a system of separation of powers.
This notion of a supreme constitution is an important one on which South Africa’s
democratic constitutional dispensation is based.
, Constitution of the RSA – 1996.
Any law or conduct can potentially be tested against
the provisions of the Constitution and must be declared
invalid if it fails to comply with these provisions.
Section 1 of the Constitution affirms that the South
African constitutional model is not only descriptive but
prescriptive.
• The Constitution provides for what can be deemed a quasi-federal division of
power across three levels or spheres of government, namely national, provincial
and local spheres.
• Chapter 3 makes it clear that while the three spheres of government are distinct,
all three spheres are expected to work together to deliver the vision of the
Constitution.
• Constitutional restrictions on the exercise of public power can be both procedural
and substantive in nature.
• Substantive restrictions are achieved through a justiciable bill of rights and the
constitutional commitment to other values such as the rule of law. The exercise
of public power can also be restricted in a procedural way. One of the most
important mechanisms through which this is achieved in a constitutional
democracy is through the separation of powers.
• The separation of powers doctrine seeks to limit the powers of each individual
branch of government: the legislature, the executive and the judiciary.
• Separation of powers aims to protect society against the abuse of political power
Four principles that make up the modern conceptualisation of the doctrine:
1. The division of governmental power across the three branches, namely the
legislative branch (parliament), the executive branch (president/prime minister and
cabinet) and the judicial branch (the courts). This division is often referred to as the trias
politica.
2. The principle of separation of functions entails conferring distinct areas of
responsibility and authority on each of the three branches of government and preventing
one branch from taking responsibility for the tasks allocated to another branch.
3. The principle of separation of personnel entails that each branch of government
must have assigned to it specific persons who are responsible, often exclusively, for the
performance or execution of that branch’s function.
4. The provision of checks and balances entails that one branch can be held
accountable by other branches to check the exercise of power by that branch. In certain
circumstances, this allows one branch to veto the actions taken by another branch. This
ensures, first, that the branches remain connected in the discharge of their functions,
and second, that the branches hold each other to account where provided for by the
constitution.
