What is constitutional supremacy?

Source: Constitutional Court of South Africa

One of the most important features of a constitutional democracy – which is what South Africa has been since 1994 – is constitutional supremacy.

South Africa did in fact have a constitution before the interim Constitution of 1994 and the final Constitution of 1996. But that “tricameral” constitution – which created separate parliaments for whites, coloureds and Indians but denied blacks a say in government – was not supreme. It was subject to the whims of parliament – in this case, an unrepresentative one.

Parliamentary sovereignty meant that members of parliament could pass any laws they liked – as long as the correct procedure was followed, it didn’t matter if the constitution was violated. Back then the courts had no power to scrutinise and overrule any legislation that violated human rights; nor had any such rights been entrenched in that constitution.

But all this changed in 1994, when South Africa became a constitutional democracy and what was then the interim Constitution became the highest source of authority in the land. Now, of course, the final Constitution is superior to parliament and is the yardstick by which all other laws are judged. It applies to all organs of government – including parliament, the presidency, the police force, the army and the public service.

The supreme status of the Constitution is set out early in the text. Section 2 of Chapter 1 – which deals with founding provisions – is a crucial one. It is entitled “Supremacy of Constitution” and says: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

This means any law that violates the Constitution, or any conduct that conflicts with it, can be challenged and struck down by the courts.

And this is possible because, in a constitutional democracy where power is properly shared by the executive, the legislature and the judiciary, the courts are independent and subject only to the law and the Constitution itself.

This brings us to the doctrine of the separation of powers.

Landmark Cases upheld the Constitutional Supremacy 

• Outlawing of the death penalty: S v Makwanyane (1995)
• The right to housing: Government of the RSA v Grootboom (2000)
• The common-law definition of marriage permits same-sex couples the same status, entitlements and responsibilities accorded to heterosexual couples: Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, amicus curiae); Lesbian and Gay
• Equality Project and Others v Minister of Home Affairs and Others (2005)
• Employment discrimination against an HIV-positive person: Hoffman v South African Airways (2000)
• Right to healthcare and access to HIV/Aids treatment: Minister of Health v Treatment Action Campaign (2002)

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Note

Since 1982, the Canadian Constitution has featured an express supremacy clause. Section 52(1) of the Constitution Act, 1982 declares that the Canadian Constitution is “the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” Canadian courts have invoked section 52(1) since 1982 as the legal basis for invalidating unconstitutional laws enacted by legislatures in Canada. Yet, before 1982, Canadian courts also engaged in constitutional judicial review — at that time, on the basis that other aspects of the Constitution, especially the British North America Act, 1867, formed part of the supreme law of Canada…..In Hunter v. Southam Inc., a decision from 1984, the Supreme Court of Canada described the judiciary as “the guardian of the Constitution.” The statement is ambiguous with respect to whether the Court meant that the judiciary became the guardian of the constitution as of 1982 or whether it held that status before. That said, the “as of 1982” understanding has taken hold in Canada. In a 2014 ruling, the Supreme Court cited Hunter together with the text of section 52(1) for the proposition that the judiciary “became” the guardian of the Constitution as of 1982. ( BRIAN BIRD in THE UNBROKEN SUPREMACY OF THE CANADIAN CONSTITUTION]