Constitutional Law: Supremacy, Rights and Enforcement
What is examined
The 1997 Constitution, as amended, is the frame: sovereignty of the people, a republican executive, a National Assembly, an independent judiciary, and a Bill of Rights in Chapter IV enforceable in the High Court. The paper tests supremacy, separation of powers, the scope and limitation of guaranteed rights, and the procedure for constitutional challenges.
Core rules
- The Constitution is the supreme law; any law inconsistent with it is void to the extent of the inconsistency, and the courts have the power to declare it so.
- Chapter IV protects life, personal liberty, fair trial, freedom from torture and inhuman treatment, privacy, expression, assembly, association, movement, property and equality before the law.
- Most rights are subject to limitation clauses permitting laws reasonably justifiable in a democratic society, so the answer must address both the right and the justification.
- Detention is lawful only on stated grounds, and the detained person must be informed of the reason and brought before a court within the constitutional period.
- Courts apply the presumption of constitutionality: a statute is upheld unless clearly inconsistent, and ouster clauses are construed strictly.
- Judicial review of executive action is inherent in the constitutional order, and the Supreme Court has final appellate and interpretative jurisdiction.
Worked example
A statute provides that a minister's order for detention 'shall not be questioned in any court'. A detainee applies to the High Court.
Reasoning: the ouster clause is read narrowly and cannot deprive the court of the power to examine whether the order falls within the enabling Act or breaches Chapter IV. The court asks first whether the statute authorises the detention, then whether the limitation is reasonably justifiable in a democratic society. If not, the order is void and the detainee is released, with the possibility of compensation.
Traps
Citing English authority without testing it against the Constitution; ignoring the limitation clause; filing a constitutional petition outside the prescribed period or in the wrong court; and confusing an appeal with a constitutional reference.