BASIC FEATURES OF CONSTITUTIONS

1. SOVEREIGNTY

WHAT IS SOVEREIGNTY?
 Dictionary proffers the following meanings:
o dominion
o power
o control
o independence
o autonomy
o self-government
o supreme power & right to exercise it
o subjugation – society subjecting themselves to the power & control of
the state/government
 In the context of modern states sovereignty is vested in the governing
structures/state
 There are different types of sovereignty
 2 are considered:
o Parliamentary sovereignty
o Constitutional supremacy

PARLIAMENTARY SOVEREIGNTY
 Parliament refers to assembly, congress, legislature, legislative body, senate,
upper house, house, lower house, house of representatives, etc.
 The term ‘parliamentary sovereignty’ developed in the British context

Constitutional Monarchy
 Before expounding on the term ‘parliamentary sovereignty’ we will first look at
the concept ‘Constitutional monarchy’
 The monarchy has been a constant feature in the constitutional history of
Britain
 Monarchy has developed over time
 Initially it held a monopoly over government power – absolutism
 Currently it is described as a constitutional monarchy – meaning that the
monarch’s powers are no longer absolute but are limited by the constitution
 Queen is said to have the trappings of political authority – in reality she has a
very limited role.
 Since the late 17th century the monarch has been subject to the authority of
Parliament and common law
 Monarch has no legislative powers
 No right to veto Parliamentary legislation
 Its executive power has been limited by law
 Judicial power has been transferred to the courts
 Today the Queen occupies the position of non-partisan head of state –
symbol of national identity
 Conducts mainly ceremonial duties

Parliamentary supremacy
 Clearly a historical mapping of UK history indicates that the Parliament was
the institution which rivalled and came to surpass the British monarchy
 Since 18th century it is the dominant organ of the British state
 This dominance is expressed in the doctrine of ‘parliamentary supremacy’
or ‘parliamentary sovereignty’
 Classic formulation of this theory is proposed by Dicey (1835 – 1922)
 Dicey states that the doctrine has 2 essential components:
o Parliamentary omnicompetence – that parliament has the right to
make or unmake any law
o Parliamentary monopoly of power – that no person or body may
override or set aside legislation made by parliament
 There is no other constitutional authority whose powers can prevail over
those of parliament
 All other legislative bodies and organs of state are subordinate to parliament
 Hence, parliament is the supreme law making authority in the state.

 What prevents parliament from being a tyrant? Dicey explains that

parliament is a representative of the electorate, of the people who elect it to
power – therefore parliament cannot legislate against the wishes of the
people
 In terms of parliamentary supremacy there are no substantive constraints on
power – meaning that there are no mechanisms which can review the
contents of law being made by parliament
 There is however procedural constraint – parliament must follow the
procedures laid down in the constitution when passing laws
 Courts have some say in determining whether the correct procedures were
followed or not

Influencing the South African Constitution

 The British parliamentary system has had a great influence on the system in
South Africa
 Therefore parliamentary supremacy played a big role in the South African
constitutional history
 Parliamentary sovereignty remained a constant feature in the South Africa
until its demise in 1994
 Currently in South Africa the Constitution is regarded as the supreme law of
the land

CONSTITUTIOANL SUPREMACY
 An example of Constitutional Supremacy is the American Constitution where
the Constitution takes on the nature of a higher law
 Meaning that the provisions of the Constitution will prevail over all other legal
or political actions of government
 Where there is inconsistency with the Constitution it will be declared null &
void
 Constitutional Supremacy is seen in contrast to Parliamentary Supremacy
 In a system of Parliamentary Supremacy – Westminister system – Acts of
Parliament are legally supreme & the constitution is subordinate
 In a system of Constitutional Supremacy the Constitution is supreme
 The notion of Constitutional Supremacy is a prevalent doctrine in modern
constitutionalism
 Constitution can be given the status of a supreme legal norm because it is
enforceable/justiciable by the courts.
 Supremacy of the Constitution therefore obliges all government bodies to act
consistently with the Constitution, lest their actions be declared invalid by the
courts

2. DOCTRINE OF SEPARATION OF POWERS

Origin & development of the doctrine

 French phiolosopher Montesquieu (1689 – 1755) expounded the doctrine of

trias politica
 John Locke (1632 – 1704) recorded the virtues of the doctrine some 60 years
before Montesquieu
 Locke advocated the division of the government functions into:
o Legislative
o Executive
o Foreign relations
 Montesquieu classified them as:
o Legislative
o Executive
o Judicial
 Montesquieu’s classification stands till today
 Both the above must be seen in the context in which the concept was
developed
 European monarchs possessed absolute power – hence the idea of dividing
power was created
 By dividing the power & allocating to different institutions absolute power was
limited
 Clearly this concept arises out of a distrust of government power & a need for
individual freedom

 United States constitution translated the doctrine into constitutional provisions

Legislature Executive Judiciary
Congress & Senate The President Supreme Court
 Strict separation of functions and personnel Judges with lifelong
 President & other members of executive cannot tenure
 be members of legislature
 President may enter into treaties only with the
consent of a 2/3 majority of the members of
Senate
 President may be impeached by congress

 This doctrine is most strictly observed in the US than anywhere else in the
world
 South Africa too has adopted this doctrine

Separation of powers & the modern state

 The doctrine is in essence a method of limited government or

constitutionalism
 Essentially it means that a constitution must provide effective checks &
balances on the exercise of power in a nation state in which constitutionalism
prevails
 An excessive concentration of power in a single organ or person is an
invitation for abuse or maladministration

Meaning & purpose of the doctrine of separation of powers

 SOP means that the functions of government must be classified as either:

o Legislative – making law
o Executive – executing the law
o Judicial – resolving disputes

 These functions must be performed by different branches of

government/persons

 Purpose of separating the functions & personnel is to prevent the excessive

concentration of power in one single person or body

 Need for checks & balances is obvious

 Purpose of checks & balances is to ensure that the different branches of
government control each other (checks) & serve as counterweights to the
power possessed by other branches (balances)
 Example of a ‘check’ – power of the judiciary to review laws & the conduct of
the executive & the administration.

3. THE RULE OF LAW

 How can it be that all should obey, yet nobody take upon him to
command, and that all should serve and yet have no masters? These
wonders are the work of law. It is to law alone that men owe justice and
liberty. It is this salutary organ of the will of all which establishes in civil
right the natural equality between men. The first of all laws is to respect
the laws.
Jean-Jacques Rousseau

 Term now used to convey this idea is ‘rule of law’

 Rule of law doctrine contains principles which have formed part of English
law since the 13th century
 only in 1885 was the term popularized by A V Dicey in his work Introduction
to the Study of the law of the Constitution
 Dicey described the rule of law in terms of three main principles
o The principle of legality, which states that no person may be deprived
of rights and freedoms through the arbitrary exercise of wide
discretionary powers by the executive – this may only be done by the
ordinary court of the land – this was a principle with particular
application to criminal law
o The principle of equality, which states that no person is above the law
and every person (including the state’s officials) is subject to the
jurisdiction of the ordinary courts
o The principle that applies in Britain, namely that the rights of individuals
are effectively protected by the action and decisions of the ordinary
courts rather than by guarantees contained in a constitution/Bill of
Rights

 Several other versions of the doctrine exist beside that of Dicey

 A narrow, formalistic version reduces the rule of law to the bare requirement
that the government must have authority provided by a law for everything it
does, regardless of the procedural or substantive qualities of the law –
frequently propagated by the old regime in South Africa – attempted to justify
its racist and authoritarian actions by pointing out that they were authorized
by law
 More sophisticated version known as the principle of legality, requires in
addition to legal authority for state action, that the law in terms of which the
state acts must be general, prospective, clear & relatively stable
 Also, various procedural standards must be met in the enforcement of the law
 In short, the law should be impartially enforced by independent courts or
tribunals according to fair procedures

 Dicey’s version has been subject to many reformulations

 This was also done by Mathews in South Africa in 1964 – during the
apartheid era.
 Mathew summarized it as follows:
o In a decent society the idea that a state should wield arbitrary power
over the individual is unthinkable;
o All persons, including government officials, are equally responsible to
the law;
o Effective judicial remedies afford the individual greater protection than
constitutional declarations
 Ideas & principles contained in the rule of law can now be found in the Bill of
rights, which is entrenched.

4. DEMOCRACY
 Democratic theory revolves around a central respect for human worth &
dignity
 This respect is based on the principle that individuals should participate in the
governing of their society
 Democracy therefore describes a democratic system where the core principle
is social equality
 Constitutions are therefore seen as instruments enforcing democracy

 There is, however, no definition of the principle of democracy in the

Constitution
 Neither does the Constitution provide an exhaustive list of requirements the
principle imposes
 Clearly therefore there is no general agreement on what democracy means
 There is agreement on the abstract & general statement on the types of
democracy
 There are 3 specific forms of democracy recognized in the Constitution:
o Representative democracy – people shall govern through the
electorate
o Participatory democracy – mechanisms for allowing the people
themselves to participate in government decisions
o Direct democracy – where people can be directly involved in decision
making e.g. referendum

Representative democracy
 The basic idea of representative democracy is that the people should
participate in politics through their duly appointed elected representatives
 The most important Constitutional provisions relating to democracy are:
o The political rights in the Bill of Rights – see s19
o Provisions relating to the electoral system & the mandates of
representatives
o Provisions dealing with political parties

Participatory democracy
 Means that individuals or institutions must be given the opportunity to
participate in the making of decisions that affect them
 This is particularly important for organized interests groups e.g. business,
farmers & trade unions – normally for engaging with government on issues
affecting them
 Note the distinction between:
o Participation in law making
o Participation in executive decision-making
o Participation in constitutional adjudication

 Participation in law making

o Constitution and the rules of various legislative bodies provide ample
opportunity for participation in the legislative process
o Stakeholders can participate from beginning (comment on government
discussion papers & policy papers) to end (permitted to make
submissions to the legislative committees).

 Participation in executive decision-making

o Somewhat less favourable than participating in law making
o Constitutional right to procedurally fair administrative action – requires
that a person is given a hearing before decisions are taken that affect
his/her rights
o There is no general requirement that the executive must consult
affected parties before it makes decisions
o Situation is partly addressed by s4 of the Promotion of Administrative
Justice Act 3 of 2000 – requires a public inquiry to be held, or notice &
comment procedures to be used, before subordinate legislation is
passed that materially & adversely affects the public’s rights

 Participation in constitutional adjudication

o This idea is even less developed than participating in executive
decision-making
o Rules of the Con. Court permit a person with an interest in the matter
before court who is not a party to the matter to be admitted as amicus
curiae
o Rule 12 of the Con. Court permits third parties to intervene in
legislation in narrowly defined circumstances – the intervening party
must have a direct legal interest in any remedy the court may give.
o Interest groups may then make use of the new Rule 16A – used as the
old rule 9 – amicus curiae rule

Direct democracy
 Direct democracy serves as a counterweight to the importance of political
parties in a representative democracy
 Serves to balance the influence exerted by interest groups through
participatory democracy
 This is therefore for those whose interests are neglected by the political
parties, or who find it difficult to make use of the possibilities for participation
 S17 recognises the importance of direct democracy by safeguarding the right
to assembly, demonstration, picket & petition.
 Protest action is a constitutionally guaranteed method that may be used by
groups to engage more directly with state authorities
 S84(2)(g0 – makes provisions for national referendums to be called by the
President
 S127 makes provision for provincial referendums to be called by the Premier
of a province
 Purpose of referendums is to enable certain contentious decisions to be
made directly by the electorate.
 Useful to hold referendums when the members of the ruling party are
internally divided on an issue – e.g decriminalization of soft drugs or
prostitution
 Caution is called for in drafting of the question
 Dangerous to allow the public to vote on issues affecting individual rights –
e.g. death penalty, abortion or pornography – these issues are better decided
through deliberation in representative structures

5. REPRESENTATIVE & RESPONSIBLE GOVERNMENT

 Commence with an understanding of the term ‘parliament’
 The word ‘parliament’ can be traced back to the Latin word parliamentum, the
Fench word parler, & the English parley – to speak
 13th century – “parliaments” referred to the meetings of the monarch & the
noblemen & the knights
 14th century – there was official recognition of the term
 This concept developed mainly out of the monarch’s need to obtain the
consent of the people for the imposition of taxes
 This led to a gradual development of the principle of representation

Representative government
 In modern states the principle of representation is one of the essential
elements of a democratic system
 Democracy is commonly translated as government of the people, by the
people & for the people
 Given expression in different ways in the differing systems – the ideal is not
equally effectively realized in all systems
 But, all democratic systems must satisfy the principle of representation
 Refers to a system in which government authority is exercised by bodies &
persons who are representatives of the people
 Therefore, government bodies shall be directly elected by the people to
ensure that they are representative
 Some important methods of giving effect to the principle of representation
o Franchise
o Regular elections
o The choice of electoral system
o Right to freely form political parties & participate in elections

Responsible government
 Further development of parliament revolved around 2 aspects:
o Development of political parties
o Development of cabinet
 Hence the legislative initiative was being transferred to the executive
 However, due to the concept ‘representative government’ the
executive/cabinet could only govern with the continuous support of parliament
 Why? – because it had to be ensured that the elected government at all
times acts in the interests of the people on whose behalf it governs
 Thus, the principle ‘responsible government’ is established through
parliament’s control of the executive.
 This includes functions such as:
o Control of state spending
o Inquiries into the administration
o Analysis & criticism of government policy through questions & debate

6. INDEPENDENCE OF THE JUDICIARY

 Independence of the judiciary is an incidence of the separation of powers

Judicial Independence in the Westminister System

 Originally courts were just another branch of the state – judges had no
institutional independence from the monarch
 Judges exercised their power in the name of the king
 1552 – 1634 leadership of Chief Justice Coke – courts began to assert their
independence – rejecting the king’s treatment of judges as his servants
 Act of Settlement of 1701 – improved the position of the judges by providing
that they could not be dismissed during good behaviour – previously judges
were threatened with dismissal if they did not comply with the king’s wishes
 In modern Westminister constitutions independence of the judiciary is
secured by several mechanisms:
o Judges are appointed by the executive in consultation with the bench
o Judge cannot be removed from office except by resolution of both
houses of Parliament – only on grounds of misconduct & unfitness
o Remuneration of judges is fixed directly by Act of Parliament – not
possible to reduce a judge’s salary his/her tenure
o There are restrictions on the right to bring legal proceedings against
judges
 o If incorrect judgment is given judge cannot be held liable
o contempt of court proceedings protect the judiciary from public
denigration

Judicial Review in the American System

 Judiciary played an important role in enforcing & upholding the American
constitution
 Power of the courts to enforce the constitution is referred to as judicial review
 In interpreting the constitution the courts ventured into giving decision on
social & political issues – e.g. abortion, electoral system
 They thereby assumed a more political role & were accused of ‘activism’ by
usurping the main policy-making functions of other structures.

Defining impartiality & independence

 Independence of the judiciary refers to 2 ideals:
o Judiciary should enforce the law impartially – judges should act without
bias & should not be subject to external pressure or influence
o Judiciary should function independently of the legislature & the
executive
 Impartiality refers to a state of mind or attitude of the tribunal in relation to the
issues & the parties in a particular case – connotes absence of bias
 Independence is concerned with the nature of the relationship between the
branches of government
 It is said that independence comprises 3 essential components:
o Security of tenure
o Basic degree of financial independence
o Institutional independence in respect of the courts’ judicial functions

 South African constitution guarantees independence of the judiciary &

protects the courts from interference by the executive.