Basic Concepts - Constitutions

1. What is a constitution?

The word constitution is used in 2 different contexts:

o In an abstract context it 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 In a concrete context it refers to a document which sets
out the distribution of powers between, and the
principle functions of, a states organs of government.

Modern Constitutions perform several functions:

o Provides a legal framework for the operation of
government
o Defines the ultimate sources of legal authority
o Provides 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
individuals interaction with the state
o Operates as a manifesto a confession of faith
o Establishes the government, the administration & other
organs of state
o Confers power
o Indicates which bodies should resolve conflicts
o Provides procedures & standards for dispute resolution

2. What is Constitutional law?

It is 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

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

3. What constitutions contain?

Contents of Constitutions differ as a result of the different

political & historical circumstances which prevail when they
come into being
Some of the more general contents can be listed as follows:
o Preamble
o Chart of the state system
o Amending provision
o Bill of Rights
o Financial provisions

Preamble

Serves as an introduction to the constitution

Symbolical & ideological purposes
No legal significance
Espouses values & principles democracy, human rights,
justice & equality.

Chart of the state system

Akin to a organizational chart

Includes matters of both substance & procedures
Describes the legislature, executive & the judiciary

Amending provision

Allows the present generation to modify the rules it inherited

Rigid constitution difficult to amend
Different ways in which amendments can occur

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 Different amending procedure for different provisions SA
Constitution some provisions cannot be changed
Informal amendment courts interpretation of provisions can
be developed

Bill of Rights

Normally the limit to public power is set out in the Bill of

Rights
BOR list of fundamental rights of members of society which
the state cannot or should not violate
Wide variety in the contents of BOR
Civil & political rights
Socio-Economic Rights
New rights

Financial Provisions

Refers to the supervision of the national budget

Generating revenue laws imposing customs, tax, sales tax
Determining the distribution - how the money 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 for their actions while in office to be regarded
as legal

For citizens it should describe:

o the rights
o the conditions of political participation in various
institutions
o the remedies for redress of human rights

For the Constitutional Lawyer it should reveal the juridical

basis of the constitutional legal system

4. How constitutions emerge?

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 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
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 it should operate in the future 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 who represent 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 unwritten constitution
some aspects are regulated by legislation

Flexible & inflexible

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 o Inflexible rigid difficult to change/amend
o Certain aspects are inflexible

Single & multi-document

o Majority constitutions contained in one document
o However supported by other laws

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 government authorities
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 is of a far lesser 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

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 Current constitution only a few elements of British origin
are left:
o Majority government
o Separation of Powers
Parliamentary sovereignty & any other remaining British
conventions have been abandoned

Customary Law
We see a unique concept featuring in the South African
constitution ubuntu - emanates from the customary laws
of the land
Ubuntu - recognizing a persons 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

Case Law
Case law was an extremely limited source of constitutional
law in the past
Situation has changed drastically
Current constitution has a justiciable Bill of Rights many
cases before the CC
Hence a dramatic increase in case law as a source of law