Constitutional Law in Context: Volume 1 2Nd Ed

Basic concepts of constitutional law 2.1 Introduction 2.2 Constitutionalism 2.2.1 Understanding the nature of constitutionalism 2.2.2 Constitutionalism as a descriptive doctrine 2.2.3 Constitutionalism as a prescriptive doctrine 2.2.4 Models of constitutionalism 2.2.4.1 The Westminster constitutional model 2.2.4.2 The United States constitutional model 2.2.4.3 The German constitutional model 2.2.5 Constitutionalism in South Africa: a brief overview 2.2.5.1 The era of the dominance of the Westminster constitutional model 2.2.5.2 The era of constitutional supremacy 2.2.5.2.1 Constitutional supremacy 2.2.5.2.2 A value-based constitutional system 2.2.5.2.3 Co-operative federalism 2.3 Separation of powers 2.3.1 The purpose and principles of the doctrine of separation of powers 2.3.2 A brief history of the doctrine of separation of powers 2.3.3 Separation of powers: the South African experience 2.3.3.1 The legislature 2.3.3.2 The executive 2.3.3.3 The judiciary 2.3.4 The counter-majoritarian dilemma 2.4 The rule of law 2.4.1 A brief history of the rule of law 2.4.2 The rule of law under the 1996 Constitution 2.5 Democracy 2.5.1 Conceptions of democracy 2.5.2 Direct democracy 2.5.3 Representative democracy 2.5.4 Participatory democracy 2.5.5 Constitutional democracy Summary 2.1 Introduction To obtain a sound command of South Africa‘s constitutional law, it is important that we consider certain fundamental concepts at the outset. This is necessary to establish some level of common understanding of the principles, doctrines and concepts that lie at the heart of how our Constitution operates, the context that gave rise to it as well as the context in which it operates. These concepts lie at the heart of the South African Constitution and find expression in many of the provisions of the Constitution. When studying specific aspects of the Constitution, this needs to be done against the background of the concepts discussed below. The principle aim of this chapter is therefore to introduce some of the more important overarching ideas that are pivotal in both explaining and contextualising the development of South African constitutional law. Although we focus on constitutional developments that have taken place in the period after South Africa‘s transition to democracy, we also briefly consider some important constitutional moments from bygone colonial and apartheid periods for purposes of context. We will also attempt to locate these constitutional developments within a broader historical and political context that recognises the influence of the constitutional law and practices of other countries. 2.2 Constitutionalism 2.2.1 Understanding the nature of constitutionalism Constitutionalism as an idea or a term is not easy to define. The term ‗constitutionalism‘ is sometimes used to convey the idea of a government that is limited by a written constitution: it describes a society in which elected politicians, judicial officers and government officials must all act in accordance with the law which derives its legitimacy and power from the constitution itself.1 Constitutionalism, in this sense, is thus concerned with the problem of how to establish a government with sufficient power to realise a community‘s shared purposes and to implement the programmes for which a specific government has been elected by voters. At the same time, at issue is how to structure that government and control the exercise of power by the various branches of that government (and other powerful role players in society) in such a way that oppression and abuse of power is prevented.2 As such, constitutionalism is closely related to the notions of democracy and theories of governance. As a starting point, we can identify some characteristics of constitutionalism that will assist us to understand its nature: • First, constitutionalism is concerned with the formal and legal distribution of power within a given political community in which a government is ordinarily established in terms of a written constitution.3 • Second, constitutionalism provides for the establishment of the institutions of governance, such as the legislature, the executive and the judiciary. • 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, and implicit in the previous points, 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. While this is by no means an attempt at a definition, in identifying these characteristics, we attempt to expose the types of matters with which constitutionalism would ordinarily be concerned. In the section that follows immediately below we elaborate further on what constitutionalism is. Accepting the characteristics of constitutionalism described above, we can conclude that, in essence, constitutionalism is about the notion that a constitution must both structure and constrain state power. On the one hand, a constitution must allocate power to various branches of government to allow for the effective governing of a state. On the other hand, it must limit and/or disperse that power to ensure that it will not be abused. While constitutionalism seeks to achieve what are clearly important, if not sometimes conflicting, goals, we must acknowledge that constitutions are not self-executing documents nor do they contain identical provisions. The development of a particular system of constitutionalism and its relationship with other important constitutional law concepts, such as the rule of law, the protection of human rights and democracy, therefore, will depend on which constitution is under consideration, the relevant political and social history of the society in which it is being established and the particular rules, principles and institutions it establishes. Consequently, over the centuries during which the concept has evolved, different understandings as well as different models of constitutionalism have developed. The development of these models depended on how a particular constitution structured and allocated power and which norms were emphasised as foundational to the system by the text of the constitution and/or by the interpretation and application of that text by judges. We consider some of these understandings and models below. PAUSE FOR REFLECTION The unique nature of South African constitutionalism In S v Makwanyane and Another, Mahommed J made the following statement which, arguably, captures the unique nature of South African constitutionalism: All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.4 This passage highlights the fact that South African constitutionalism must be understood as relating to more than the mere technical legal regulation of the exercise of state power (and the limits placed on the exercise of that power) by the various branches of government. South African constitutionalism is thus not only a descriptive doctrine, factually describing what institutions should exercise power in what particular manner. It is also a prescriptive doctrine as it prescribes how state power should be exercised in a legitimate manner, which is related to the democratic legitimacy of the exercise of that power, and it prohibits the exercise of state power in certain ways. It is also normative as it sets out the values that must be adhered to in the governing process. This limits the kinds of actions that any state institutions, and sometimes also private institutions, are permitted to perform. We explore these aspects further below. 2.2.2 Constitutionalism as a descriptive doctrine We can view constitutionalism as a descriptive doctrine or, put slightly differently, we can understand it in a descriptive sense. Understood in this way, constitutionalism seeks to provide a factual description of the institutions, procedures and structures that make up the constitutional system of a particular state.5 This understanding of constitutionalism is formalistic in nature: it focuses on explaining the distribution of power, the relations between the branches of government and the limitations on power as provided for in a given constitution. It does not concern itself with whether state power is being used in contravention of democratic or human rights norms. In other words, it does not seek to make value judgments as to whether the state in question adheres to or upholds its own constitutional limits or rules or whether it provides for an essentially democratic system of government.

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