Constitutionalism and Rule of Law Overview

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Questions and Answers

What constitutional concepts must the state of Abysmal adopt to become a democracy?

Constitutionalism, Representative democracy, Constitutional democracy, Separation of powers, Cooperative government.

What does constitutionalism mean?

Government in accordance with the constitution.

What are the three premises of the rule of law according to Dicey?

Absence of arbitrary power, equality before the law, a judge-made constitution.

What is the distinction between formal and material Rechtsstaat?

Formal Rechtsstaat requires compliance with formal criteria, while material Rechtsstaat requires state authority to be bound to higher legal values. Signup and view all the answers

What is the meaning of democracy?

Government according to the will of the people. Signup and view all the answers

What are the characteristics of a democratic government?

Free and regular elections, a multiparty system, universal suffrage, protection of minorities, mechanisms for accountability. Signup and view all the answers

Direct democracy means that all major political decisions are taken by the ______.

people themselves Signup and view all the answers

Representative democracy demands that all inhabitants of the state should have a say in governance via ______.

direct representation Signup and view all the answers

South Africa established a fully representative democracy with the 1993 constitution.

True Signup and view all the answers

What does judicial review entail?

The power of the judiciary to declare laws inconsistent with the constitution as invalid. Signup and view all the answers

What is meant by constitutional law?

Constitutional law is the aggregate of binding rules relating to the distribution and exercise of state authority. Signup and view all the answers

Distinguish between public and private law.

Public law regulates the exercise of state authority in relationships of inequality, while private law governs relationships between individuals on an equal footing. Signup and view all the answers

What are the sources of constitutional law?

The sources include the constitution, legislation, common law, case law, and international law. Signup and view all the answers

An inflexible constitution requires a special amendment procedure, while a __________ constitution does not.

flexible Signup and view all the answers

Does South Africa have a flexible or inflexible constitution?

South Africa has an inflexible constitution. Signup and view all the answers

An inflexible constitution enjoys the same status as the other laws of the country and does not require any special procedures for its amendment.

False Signup and view all the answers

What is a supreme constitution?

A supreme constitution ranks above all other laws of the state and any law inconsistent with it will be declared invalid. Signup and view all the answers

Explain why South Africa has a supreme constitution.

The supremacy of the constitution is listed as a founding value, and the constitution is declared as the supreme law. Signup and view all the answers

What is the difference between autochthonous and allochthonous constitutions?

Autochthonous constitutions are indigenous, while allochthonous are borrowed. Signup and view all the answers

What majorities are required to amend different provisions of the Constitution?

Section 74 specifies that a 75% vote from the National Assembly is required for some amendments, while a two-thirds majority is required for others. Signup and view all the answers

Explain the relationship between constitutional supremacy and the courts' power to test the constitutionality of legislation.

Constitutional supremacy means any law inconsistent with the constitution is invalid, and courts must declare such laws unconstitutional. Signup and view all the answers

What is judicial review?

A process by which courts can review the legality of legislative or executive actions. Signup and view all the answers

Judicial review can be considered undemocratic.

False Signup and view all the answers

What are the two types of government systems mentioned?

Parliamentary system and presidential system. Signup and view all the answers

Match the following authority types to their descriptions:

Legislative authority = The power to create, amend, and repeal laws Executive authority = The power to execute and enforce legal rules Judicial authority = The power to interpret legal rules and apply them to concrete situations Signup and view all the answers

What did South Africa's constitution use to establish democratic authority?

It required a 2/3 majority of the constitutional assembly. Signup and view all the answers

List the three spheres of government in South Africa.

National, Provincial, Local. Signup and view all the answers

What is meant by federalism?

A system that divides government powers between national and subnational entities. Signup and view all the answers

Does South Africa have an integrated model of federalism?

Yes, South Africa follows a more integrated model than a divided one. Signup and view all the answers

Parliament may pass an Act designed to test the validity of a judgment of the Constitutional Court.

False Signup and view all the answers

What does the doctrine of checks and balances entail?

Each branch of government has powers over the others. Signup and view all the answers

Explain the role of the judiciary in maintaining checks and balances.

The judiciary reviews legislative and executive actions to ensure they comply with the constitution. Signup and view all the answers

In De Lille v The Speaker of the National Assembly, the Cape High Court held that the exercise of parliamentary privileges would at all times be subject to judicial review irrespective of whether it was exercised in a proper manner.

False Signup and view all the answers

What are parliamentary privileges?

They are rights designed to protect Parliament from outside interference, allowing members to perform their functions without fear of prosecution. Signup and view all the answers

Explain whether the exercise of parliamentary privileges is subject to judicial review.

Yes, but only when exercised improperly, such as mala fide or capriciously. Signup and view all the answers

Discuss the role of parliamentary committees.

Parliamentary committees manage the complexity of legislative matters and promote government transparency. Signup and view all the answers

Can the President of South Africa veto a bill by refusing to sign it?

No, the President must either sign or refer it back to the National Assembly. Signup and view all the answers

What must the President do if they have reservations about a bill's constitutionality?

Refer it back to the National Assembly for reconsideration. Signup and view all the answers

What is the definition of separation of powers?

The division of state authority into legislative, executive, and judicial functions performed by separate branches of government. Signup and view all the answers

A bill amending section 1 of the constitution requires a _____ majority in Parliament and a supporting vote of at least 6 provinces in the NCOP.

¾ Signup and view all the answers

A bill amending any section in Chapter 2, the Bill of Rights, requires a _____ majority and a supporting vote of at least 6 of the provinces in the NCOP.

2/3 Signup and view all the answers

What is meant by the concept of cooperative government?

Cooperative government refers to the interrelation and collaboration among the spheres of government to achieve mutual goals and effective governance. Signup and view all the answers

Which sections of the 1996 Constitution deal with cooperative government?

Sections 40 and 41 of the 1996 Constitution address the concept of cooperative government. Signup and view all the answers

What do Section 40 and 41 state regarding government responsibilities?

Section 40 states that government consists of national, provincial, and local spheres that are distinctive, interdependent, and interrelated; Section 41 outlines principles for promoting cooperation among these spheres. Signup and view all the answers

What are some examples of how the spheres of government interact?

An example is the intergovernmental relations structured under Section 41, which facilitates cooperation and dispute resolution among different government levels. Signup and view all the answers

Discuss the principles of cooperative government as set out in Chapter 3 of the 1996 Constitution.

The principles include respect for each sphere, promoting cooperation, and establishing mechanisms for intergovernmental relations. Signup and view all the answers

What are four examples of institutions designed to facilitate cooperative government?

<ol> <li>Intergovernmental Forum 2. Technical Intergovernmental Committee 3. MINMECS 4. Budget Council</li> </ol> Signup and view all the answers

What is legislative authority?

Legislative authority is the power to enact, amend, or repeal laws. Signup and view all the answers

What are the two houses of Parliament in South Africa?

The National Assembly and the National Council of Provinces. Signup and view all the answers

List some functions of the National Assembly.

<ol> <li>Representation of the electorate 2. Election of the president 3. Public consideration of issues 4. Passing legislation 5. Scrutinizing executive action.</li> </ol> Signup and view all the answers

What is the difference between territorial and proportional representation?

Territorial representation elects individuals based on geographical constituencies while proportional representation allocates seats based on the percentage of votes each party receives. Signup and view all the answers

Which system has South Africa adopted for its electoral process?

South Africa has adopted a system of proportional representation. Signup and view all the answers

What is the free mandate theory?

The free mandate theory states that representatives are not bound by the electorate's mandate and must act according to their conscience. Signup and view all the answers

What is the imperative mandate theory?

The imperative mandate theory binds representatives to follow the mandate given by the electorate, requiring them to resign under certain conditions. Signup and view all the answers

What must be submitted to the NA and NCOP when a bill is introduced?

Written concerns or objections from the public Signup and view all the answers

How long after introduction may a bill not be put to assembly?

30 days Signup and view all the answers

What is the final step for a bill once it is passed by the NA and NCOP?

It must be sent to the president for assent. Signup and view all the answers

What happens if the NCOP rejects a bill?

It must be sent to the mediation committee. Signup and view all the answers

What options does the mediation committee have if a bill is rejected?

They can accept the NA bill, accept the NCOP bill, or create an amended bill. Signup and view all the answers

What majority is required for the NA to pass a lapsed bill?

2/3 majority. Signup and view all the answers

In which instance may the president refer a bill back to the National Assembly?

If he has issues regarding the constitutionality of the bill. Signup and view all the answers

What is one method the president can use to submit a bill to the Constitutional Court?

A referral by the president before a bill becomes a statute. Signup and view all the answers

What is one significant difference between section 75 and section 76?

Section 76 allows for reintroducing the bill with a 2/3 majority Signup and view all the answers

Study Notes

Constitutionalism

Government derives powers from, is bound by, and is limited by the constitution.
Protection of fundamental rights, independent judiciary, the separation of powers between the legislature, the executive, and the judiciary, and democratic principles like universal adult suffrage and free and fair elections are crucial.
Government in accordance with the law.
No person is above the law.
Every individual is subject to the ordinary law and the jurisdiction of the ordinary courts.
Government by law, not by force.

The Rule of Law

Government in accordance with the law.
No person is above the law, and no person is punishable except for a distinct breach of the law established in the ordinary manner before the ordinary courts.
Equality before the law, which means that every individual is subject to the ordinary law and the jurisdiction of the ordinary courts.
General principles of British constitutional law are the result of judicial decisions confirming the common law.

Rechtsstaat

Government by law, not by force.
Formal criteria like due process, separation of powers, and legal certainty are required.
State authority must be bound to higher legal values like human dignity, equality, freedom, and universal adult suffrage.

Representative Democracy

Citizens vote for representatives to express their will.
Citizens have a say in the way the state is governed.
Free and regular elections, a multi-party system, universal adult suffrage, protection of minorities, and mechanisms to ensure government accountability are essential.

Constitutional Democracy

Representatives in Parliament, provincial legislatures, and municipal councils are bound by the Constitution.
Laws inconsistent with the Constitution are declared invalid by a court.
A supreme constitution is needed to keep tabs on government action, prevent power concentration, provide for free and fair elections and universal adult suffrage, include a Bill of Rights, and ensure judicial independence.

Separation of Powers

State authority is divided between the legislative, executive, and judicial functions.
Legislative: Creates, amends, and repeals laws.
Executive: Executes and enforces legal rules.
Judicial: Interprets legal rules and applies them to specific situations.
Prevents concentrating power in the hands of one person or body.
Protects citizen freedom.

Cooperative Government

Executive and legislative authority is shared between national, provincial, and local spheres of government.
Each sphere coordinates and cooperates for the common good.
Political flexibility, negotiation, compromise, and less reliance on rigid power distribution are emphasized.
Brings government closer to the people, enhancing democracy.

Democracy

Government by the people.
Citizens have the right to participate in political decision-making.
Free political discourse, tolerance of differences, and the right to participate in political decision-making are essential.

Direct Democracy vs. Representative Democracy

Direct democracy: People directly make decisions through mechanisms such as referendums, initiatives, and recalls.
Representative democracy: Citizens elect representatives to make decisions on their behalf.
The text highlights representative democracy.

Judicial Review and Democracy

Judges can declare laws invalid if they are inconsistent with the constitution.
This can seem undemocratic as judges are not elected.
However, it can be democratic as the South African Constitution was developed through democratic processes, and judicial review protects political rights and freedom of expression.
Judicial review ensures that the legislature is accountable to the constitution.

Parliamentary vs. Presidential Systems

Parliamentary system: The head of government (Prime Minister) is chosen by the legislature and responsible to it.
Presidential system: The head of government (President) is elected separately from the legislature and is not directly responsible to it.

Separation of Powers and Checks and Balances

Separation of powers divides government into legislative, executive, and judicial branches.
Checks and balances give each branch power to restrain the others, ensuring balance.
Judicial review acts as a check on the legislative and executive branches, making sure they comply with the Constitution.

Separation of Powers

The separation of powers doctrine, also known as the "trias politica," divides state authority into three branches: legislative, executive, and judicial.
Legislative authority: Creates, amends, and repeals laws.
Executive authority: Executes and enforces legal rules.
Judicial authority: Interprets legal rules and applies them to specific cases.
The South African Constitution embodies separation of powers by defining the roles of each branch.
The Constitution implements checks and balances primarily through judicial review, which allows for legal challenges to legislative or administrative actions.
The judiciary acts as a watchdog over the legislative and executive branches, ensuring compliance with the Constitution.

Cooperative Government

The South African Constitution establishes a system of cooperative government, which involves three spheres: national, provincial, and local.
Each sphere has its own legislative, executive, and judicial branches, with the spheres working together while maintaining their independence.
Each sphere is distinctive (has its own identity), interdependent (relies on others), and interrelated (connected and influencing each other).
Cooperative government aims to ensure a balance of power, promote national unity, and address regional disparities.

Federalism

Federalism divides government into two or more legal orders, neither of which is subordinate to the other.
In a federal system, power and revenue sources are split, with some issues (e.g., defense, taxation, international trade) managed by the national government.
The South African system has some federal features but also emphasizes cooperation between the spheres.

The Integrated Model of Federalism

The South African system leans towards an integrated model of federalism, where national and provincial levels are closely coordinated and share powers.
This model features extensive shared powers, with national government having limited exclusive power.
Cooperative mechanisms, such as the National Council of Provinces, foster integration and dialogue.

Judicial Review in South Africa

Judicial review allows courts to review laws and government actions for constitutional validity.
This principle is crucial for protecting individual rights and ensuring the adherence of all branches of government to the Constitution.
While judges are not directly elected, judicial review is considered democratic because it upholds the supremacy of the Constitution, which was democratically adopted.

The Intergovernmental Relationship

The Constitution outlines specific principles that govern the relationship between the spheres of government.
Section 40 establishes the distinctive, interdependent, and interrelated nature of the spheres.
Section 41 sets forth guidelines for interaction and dispute resolution, emphasizing respect and cooperation between spheres.
The national government has the authority to establish mechanisms to facilitate cooperation between the spheres, resolve disputes, and address issues arising from provincial disparities.
The courts have a role in overseeing this process, ensuring compliance with the Constitution and the principles of cooperative government.

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Description

This quiz explores key principles of constitutionalism and the rule of law. It emphasizes the foundational role of the constitution in governing powers, protecting rights, and ensuring that no one is above the law. Test your understanding of these fundamental concepts that uphold democratic principles and judicial independence.