Transformative Constitutionalism
Transformative Constitutionalism and the Rule of Law
In 1994 South Africa’s legal order saw a major shift from parliamentary sovereignty to constitutional sovereignty. This meant that parliament had the ‘supreme controlling power to make and enforce decisions (in the form of legislation).’ In other words a court could not declare laws invalid if they had been properly constituted by parliament. Thus the power shifted from the legislature to the Constitution, which under the supremacy clause became the supreme law of the land. As our past has revealed, law is used both to legitimize power and constrain it. The doctrine of the rule of law provides the mechanisms for which one tries to strike a balance between the two.
Central to the rule of law is that the law is supreme and no one or body is above the law. Furthermore the adherence of the rule of law doctrine is vital in the achievement and protection of human rights as it aims at holding government accountable through a system of checks and balances facilitated through judicial review. Through the doctrine of parliamentary sovereignty, the apartheid government was able to use the law as a vehicle to implement its discriminatory, oppressive and unjust policies. The rule of law was severally flawed in South Africa under the apartheid regime, however, during the 1970s and 1980s a resurgence of the rule of law was seen, as liberal judges attempted to fight the system.
The apartheid government formally followed the rule of law in an attempt to legitimize its policies through acts of parliament. Fuller describes eight characteristics which make law law - by providing law with what he describes as an ‘inner morality.’ On the face of it, section 29(1) within the context of the apartheid era, did conform to Fullers eight characteristics of the Rule of Law as the Act was an act of general application as it referred to ‘certain people’ and did not define people by race, colour or gender. The Act had been publically
In 1994 South Africa’s legal order saw a major shift from parliamentary sovereignty to constitutional sovereignty. This meant that parliament had the ‘supreme controlling power to make and enforce decisions (in the form of legislation).’ In other words a court could not declare laws invalid if they had been properly constituted by parliament. Thus the power shifted from the legislature to the Constitution, which under the supremacy clause became the supreme law of the land. As our past has revealed, law is used both to legitimize power and constrain it. The doctrine of the rule of law provides the mechanisms for which one tries to strike a balance between the two.
Central to the rule of law is that the law is supreme and no one or body is above the law. Furthermore the adherence of the rule of law doctrine is vital in the achievement and protection of human rights as it aims at holding government accountable through a system of checks and balances facilitated through judicial review. Through the doctrine of parliamentary sovereignty, the apartheid government was able to use the law as a vehicle to implement its discriminatory, oppressive and unjust policies. The rule of law was severally flawed in South Africa under the apartheid regime, however, during the 1970s and 1980s a resurgence of the rule of law was seen, as liberal judges attempted to fight the system.
The apartheid government formally followed the rule of law in an attempt to legitimize its policies through acts of parliament. Fuller describes eight characteristics which make law law - by providing law with what he describes as an ‘inner morality.’ On the face of it, section 29(1) within the context of the apartheid era, did conform to Fullers eight characteristics of the Rule of Law as the Act was an act of general application as it referred to ‘certain people’ and did not define people by race, colour or gender. The Act had been publically
Bibliography: * Constitution of the Republic of South Africa, 1996. Hereinafter ‘The Constitution’. * Minister of the Interior v. Lockhat (1961) (2) SA 587 (A) * Rossouw v * François Du Bois (ed) Willie’s Principals of South African Law 9th ed (2007) * Karl Klare “Legal Culture and transformative constitutionalism” 1998 14 SAJHR 146. * Iain Currie and Johan de Waal et al The New Constitutional & Administrative Law (2001) 347 * South African Internal Security Act, 74 of 1982. * Geoff Budlender ‘Law and Lawfulness in South Africa’. South African Journal on Human Rights. (1988) 146 * Geoff Budlender [ 5 ]. Du Bois (ed) Willie’s Principals of South African Law 9th ed (2007) 18 [ 6 ] [ 17 ]. 1986 (3) SA 568 (A). [ 21 ]. (1964) (2) SA 551 (A) [ 22 ] [ 27 ]. Constitution of the Republic of South Africa, 1996. Hereinafter ‘The Constitution’. [ 29 ]. Iain Currie and Johan de Waal et al The New Constitutional & Administrative Law (2001) 347 [ 30 ]