Introduction to the Study of the Law of the Constitution

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A digest of the law of England with reference to the conflict of laws (1st ed. 1896, 2nd ed. 1908); Holmes O, ‘Thai junta criticised as army given sweeping powers of arrest’ https://www.theguardian.com/world/2016/apr/05/thailand-junta-gives-army-sweeping-powers-of-arrest accessed 12 July 2017 All state arms are bound by a supreme constitution. This includes the state legislature, the arm of government assigned with law-making powers. In a democratic state, this can give rise to what is commonly referred to as the counter-majoritarian dilemma; if a constitution limits the powers of a majority in parliament, then the will of the majority may be thwarted by a pre-existing constitutional rule. This runs counter to a basic premise of democracy that the majority of the people must determine the rules of a state. At the other extreme, if a majority of people can constantly overrule constitutional rules, then the constitution is hardly supreme. If the rules of the constitution could routinely be overridden by Acts of Parliament passed with a majority, the constitution would effectively be rendered meaningless. This could have implications for minority groups that are not represented by the majority in Parliament but whom a constitution seeks to protect. A purely representative notion of democracy is incompatible with constitutional supremacy. Constitutional supremacy means that every so often the will of the majority will be constrained by a constitutional rule. However, as Chaskalson P held in Makwanyane, there are other notions of democracy that are compatible with limiting the power of a legislature by a constitution that is then interpreted by another arm of state (normally the judiciary). Democracy can entail safeguards for minority voters and does not have to entail parliamentary sovereignty [4]. Democracy does not have to entail a majority decision on every aspect of a state. The majority can decide to delegate decision-making on certain matters to a smaller group of people (for example, judges who are experts in constitutional law). In any event, whatever impact a constitution has on majority rule can also be mitigated by the fact that the majority decided to create that constitution (as it arguably did in South Africa). Various provisions relating to the National Assembly, such as proportional representation (section 57).

For fuller accounts, see De Vos and Freedman op cit n 2 at 3; and Stu Woolman and Jonathan Swanepoel ‘Constitutional History’ in S Woolman & M Bishop (eds) Constitutional Law of South Africa 2 ed (2003) (service 6). Enhances representative democracy by allowing citizens to participate meaningfully in law-making in various ways. It is clear that there is no written codified constitution in the United Kingdom. The United Kingdom is a constitutional monarchy in which the reigning monarch, either the King or Queen who is the head of the state and the sovereign, does not make any open political decisions. The responsibility of making political decisions is left to the government and the Parliament. The Parliament plays a vital role in upholding the rule of law in the United Kingdom’s constitutional system. Both House of Lords and House of Commons are important to ensure that the government is abiding by the rule of law and the proposed legislation is not in the breach of the rule of law. However, to what extent the United Kingdom upholds the rule of law should be discussed. The second aspect of Dicey’s conception of the rule of law indicates that in terms of the equality before the law, no man is above the law. Regardless of what an individual’s rank or condition is, he is subjected to the ordinary law of the realm and be bounded to the jurisdiction of the ordinary tribunals. As a result, no matter an ordinary private citizen or a state official breached the same law, they would be treated in the same way. It denoted that the state officials were not given any special privileges or protections from the law of the land. Thomas Fuller had also quoted that “Be you ever so high, the law is above you.”Cosgrove, Richard A. (1980). The Rule of Law: Albert Venn Dicey, Victorian jurist. London: Macmillan. Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (Pharmaceuticals) para 80. Constitutional supremacy has various implications for a state, state actors, and persons within a state’s jurisdiction, primarily that the rules in a constitution both establish and constrain the exercise of state power [2]. A state can only act in terms of its constitution. If it exceeds the bounds of the constitution its conduct is legally invalid.

Section 1 of the Constitution provides that South Africa is a republic founded on the value of constitutional supremacy. Section 2 of the Constitution provides that the Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution thus trump all other rules contained in statutes, common law and custom. Any rule inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts the constitution, including failing to fulfil an obligation imposed by the Constitution, is similarly invalid. Review of Introduction to the Study of the Law of the Constitution". American Political Science Review. 9 (2): 385–389. May 1915. doi: 10.2307/1944633. ISSN 0003-0554. The effect of section 2 is commonly referred to as constitutional supremacy, meaning that no rule or conduct can be inconsistent with a constitutional rule. If such an inconsistency arises, it is resolved by declaring the offending rule invalid to the extent that it contradicts a constitutional rule. Conversely stated, to be valid, all law and conduct must conform to the prescripts of the constitution. In this sense, the constitution is the ultimate authority for law-making and lawful conduct. Over the past 84 years, numerous military interventions had been spotted in Thailand. It could be said that Thailand is moving towards the deep-rooted military rule in the recent years and is in the danger of becoming an assured military dictatorship after the broad police-like powers to arrest and detain had been granted to the military personnel. Thus, Thailand as constitutional monarchy is facing a serious issue on the ignorance of the doctrine of rule of law. To further certify this issue, the global ranking of Thailand in The World Justice Project Rule of Law Index 2016 was 64th. The Recommendations to Improve the Effectiveness of the Rule of Law A Leap in the Dark, or Our New Constitution (an examination of the leading principles of the Home Rule Bill of 1893) (1893)Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) (Democratic Alliance) at para 37. See most recently National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and Others [2019] ZACC 28 (NERSA) para 49. Dicey was born on 4 February 1835. His father was Thomas Edward Dicey, senior wrangler in 1811 and proprietor of the Northampton Mercury and Chairman of the Midland Railway. His mother was Annie Marie Stephen, daughter of James Stephen, Master in Chancery. He owed everything - the expression is his own - to the wisdom and firmness of his mother. [5] His elder brother was Edward James Stephen Dicey. [6] He was also a cousin of Leslie Stephen and Sir James Fitzjames Stephen. Democracy entails that citizens of a state decide on issues concerning themselves and their state. But how this plays out in practice can depend on a model of democracy. Should all citizens vote on every issue? Should representatives be elected to vote on behalf of citizens? If so, how should those representatives be elected and how should they be held to account to citizens? Models of democracy can differ on the answers to these questions. James G, ‘The law of rule in Malaysia’ http://www.newmandala.org/law-rule-malaysia/ accessed 12 July 2017

Dicey, A.V. (1896). A Digest of the Law of England with Reference to the Conflict of Laws; with Notes on American Cases by John Bassett Moore. London: Stevens and Sons Limited . Retrieved 6 April 2018– via Internet Archive. ; Dicey, A.V. (1908). A Digest of the Law of England with Reference to the Conflict of Laws (2nded.). London: Stevens and Sons Limited . Retrieved 6 April 2018– via Internet Archive.See for example My Vote Counts NPC v Minister of Justice and Correctional Services and Another [2018] ZACC 17. Introduction to the Study of the Law of the Constitution is a book by A. V. Dicey about the constitution of the United Kingdom. It was first published in 1885. Follett, R. (2000). Evangelicalism, Penal Theory and the Politics of Criminal Law: Reform in England, 1808–30. Springer. p.7. This 8th edition, published in 1915, was the last edition written by Dicey. The 9th edition (1931) and 10th edition (1959) have an introduction and appendix by E.C.S. Wade The Law of the Constitution elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions.