BASIC FEATURES OF THE NEW CONSTITUTIONAL ORDER \u2013 PART 1.doc - BASIC FEATURES OF THE NEW CONSTITUTIONAL ORDER \u2013 PART 1 References The New

BASIC FEATURES OF THE NEW CONSTITUTIONAL ORDER – PART 1.doc

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BASIC FEATURES OF THE NEW CONSTITUTIONAL ORDER – PART 1 References: The New Constitutional & Administrative Law , Volume 1, Iain Currie and Johan de Waal, pages 72 – 124. 1. Constitutional Supremacy: Constitutional supremacy means that the rules of the Constitution are binding on all branches of the state and have priority over any rules made by the legislature. Thus any law or conduct which does not comply with the Constitution is invalid and does not have the force of law. Sec 2 of the 1996 Constitution gives expression to the supremacy of the Constitution by providing that the Constitution is the supreme law and that law or conduct which is inconsistent with the Constitution is therefore invalid. Sec 8 of the 1996 Constitution provides that the Bill of Rights has supremacy over all forms of law and that the bill of rights binds all branches of the state and individuals. For a Constitution to be supreme, the judiciary must have the power to enforce it therefore section 172 of the Constitution provides that a court which has jurisdiction must declare any law or conduct which is inconsistent with the Constitution as being invalid to the extent of its inconsistency. Section 165 of the 1996 Constitution provides that any order or decision of a court is binding on all persons and organs of state to which it applies. Important to note is that the Constitution is not only enforced by the Judiciary, there are other democratic ways for example: citizens can lobby the government to give effect to their rights and also the Constitution makes provision for the establishment of Chapter 9 institutions such as the SA Human Rights Commission, the Gender Commission and so on. These institutions are created with the purpose of ensuring that the provisions of the Constitutions are complied with. 2. Rule of Law : One of the fundamental ideals of constitutionalism is that state power should be governed and constrained by the Constitution. This principle is provided for by the entrenchment of the rule of law in sec 1 of the 1996 Constitution. Albert Dicey described the rule of law into three principles: Firstly, the absolute supremacy of law as opposed to arbitrary power. This meant that a person could not be punished without there being a breach of the law. Secondly, equality before the law. Everyone should be subject to the same laws and jurisdiction of the ordinary courts. Thirdly, the Constitution was the result of the ordinary law of the land. This implied that rights such as the personal liberty and the freedom of speech arose from the common law and not the bill or rights. 2.1 Constitutional Court Application of the Rule of Law : 1
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The following cases relate to the application of rule of law dealt with by the Constitutional Court.
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