Cons law semester 1 notes
Defining Constitutional law
Public law branch, concerned with the state,society,law and public power as well as
the relationship between these. A set of rules which regulate the exercise and sharing
of state authority, these rules regulate relationships between organs of state inter se,
and organs of state and individuals.
Normative and descriptive in nature. Normative(prescriptive), since it lays standards
which should be adhered to by branches & organs of state. Descriptive, since is
describes powers, the composition, duties & interactions of principle organs of
state(who they are, their purpose and what they can do).
Found in multiple sources of law, mostly dependant on the legal system e.g In SA its
found in the Cons.. of the Republic of SA, 1996, CC precedents(whereby the Cons is
enforced & interpreted),common law, academic writing(and government body writings)
and legislation(international law may be considered, in terms of s39).
Can be written(legislation) or unwritten(UK).
The State
Constitutional system centre and the authority responsible for the management of
community public affairs.
Government has three branches -- the legislature, executive and administration
and the judiciary. Gov.. acts as the main organ of state.
Con Law focuses on explaining the powers functions and interactions between the
government branches at local,national and provincial level.
Other organs regulated by the Cons include: Police, state owned entities(Eskom,
Sassa, SAA, Post Office), Public prosecutor, HR Commision, Commision of
Enquiry, Advisory council & the Auditor General.
Constitutionalism
Theoretical prescriptions responsible for the determination of what Con Law
should do in a particular State, in short it is the organising principles which
underlie Con law in a State.Refers to government in accordance with the
constitution. Government derives it powers from, is bound by and is limited
by the constitution. Constitutionalism is normally
associated with a supreme constitution. It also describes a state in which law
reigns supreme.
Operates in a certain context based on Cons law’s purpose in a country.
Indicates how power should be exercised (AND THE PROCESS FOLLOWED
TO EXERCISE IT). Defines and limits powers of state.
Procedural component(process followed to exercise power) and Substantive
component(the kinds of power to be exercised and its limits).
, The legal system in charge determines the conception of constitutionalism and
functions of Con Law in a country.
Constitutionalism functions in the background of Con law e.g OS(windows)
differs from Mac OS.
Some have feature central to it such as the BOR,judicial review and separation
of powers while others have a different BOR and federalism.
Models of Constitutionalism
UK Constitutionalism
Oldest Cons law system & notion of constitutionalism(Westminster model).
Influenced SA through colonialism
Reference point to what SA constitutionalism isn’t anymore.
Unwritten Cons… - Con Law is in judgements, customs, common law &
parliamentary rules.
Difference – Instead of government, the Queen is the head of state, while the
prime minister is the executive.
Distinction – There are subdivisions ; executive, legislative and judicial
branch(functions differently across regions in the UK).
Unlike constitutional sovereignity it has parliamentary sovereignty(laws by the
legislature can’t be challenged or overthrown in principle). Procedural and
substantive limits function to prevent/soften this(mostly procedural checks and
notion of Constitutionalism).
Rule of Law affords such limits(NB feature of Con Law).
Externally imposed substantive limits(International HR Law) functions to
soften parliamentary sovereignity, so power isn’t exercised unjustly by
parliament.
Rule of LAW
Constitutionalism feature, by Dicey’s writings to counteract Parliamentary
Sovereignty.
Legality Principle – exercise of power through law, not randomly(arbitrarily).
Equity Principle – The law should be applied equally towards everyone
(exercised the same way). To achive such, power should be exercised through
law – it must be clear, general in application(equality), impartially enforced
and enforced fairly through consistent procedures.
Courts test laws for adherence (to Rule of law) to show legitimate exercise of
power.
US CONSTITUTIONALISM
Most influential sytem of constitutionalism
Federalism,separation of powers.
, Exercise of power should be compatible with the
constitution(constitutional).
BOR -provides HR through the Constitution(can’t be infringed upon,
since there’s substantive limit on state power).
Courts- Con..ion guardians. Judicial Review powers are exercised to
ensure constitutional adherence.(Procedural & Substantive)
Constitutional Supremacy Principle – Cons is supreme law, what it says
goes.
Separation of Powers
From French Constitutionalism(Montesque divided state powers to
three branches)- Trias politica
Lessens abuse of power in gov….no single person can create, amend,
implement, interpret and adjudicate the law.
Branches – Legislature(law maker),Executive(implements & enforces
law) and Judiciary(interprets, adjudicates & solves disputes)
Insitutionalized by US constitutionalism – Legislature(Congress),
Executive(President and Secretaries of state) and Judiciary(Courts).
Notion of separation – power is separated therefore branches have
different function & powers e.g. legislature does not solve disputes.
In modern states this doesn’t function properly, so the notion is adapted
e.g. branches check up and police other branches to ensure power is
exercised in accordance to the Rule of Law(an example is Checks &
Balances in US Constitutionalism).Checks & Balances – In SA is a
doctrine implemented by the judiciary, it exist so very branch in gov can
have power over another in order to maintain equilibrium between 3
gov.. components(entrenched in SA Cons..ion in the form of judicial
review which enables the challenging of administrative or legislative
action by courts of law which ensure that branches act in accordance
with the substantative & procedural requrements of the Con..ion.
Judicial Independence – Courts are the Arbiter(authority) of how
separation is done and they draw the line when branches overstep in
their role.
Federalism
Vertical divisions of power in Government lvls.(government is split
into two or more orders, neither is subject to another)
In SA it’s divided into 3(national, provincial and local).
US Federalism – central/national(federal) government, 52 state
governments(function like provinces), Counties &
Municipalities(local).
, US has vertical divions of power in lvls of gov, and horizontal
divisions in branches.
Federation – legisltative & executive powe & income are split
between levels of government, resulting in concurrent power.
Legislature Executive Judiciary
Federa Congress(senat President+secretari Supreme
l e and house of es of state Court
Representatives)
State State Governer State court
legislature
Local Municipality Mayor County/
district court.
In the US Con Law regulates interactions,communications &
separation of power between 3 branches of gov & lvls of gov….
Const of 1996 federal features- S40(1), states gov is constitutited at
national,local & provincial……. & chapter 6 sets out legislative &
executive gov… & determines when an Act of parliament will have
authority over provincial legislature. & CC acts as an arbitrator of
conflict cases(REASON WHY SA IS FEDERATION).
Constitutional Supremacy & Judicial Review
Law/executive conduct inconsistent with the Cons is unconstitutional &
invalid.
Courts in US – decide if law/executive conduct is Constitutional.
Judicial Reviews – if created laws comply with the Constitution, whether
executive powers & functions are exercised constitutionally. In USA there was
uncertainty if courts had such power and its extent.
Madbury v Madison – US SC passed law to review procedural compliance in
line with the Cons.., to see if laws are passed correctly by parliament. To check
if laws have a substantive role, if they aren’t aligned with the BOR or if they
lack certain values, they are declared unconstitutional(essential feature of SA
constitutionalism).
