Parliamentary Soveriegnty

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In this essay I will examine the movement that has taken place in South Africa from one of Parliamentary sovereignty to one of Constitutional supremacy by illustrating the roles that were given to the different arms of government in the past and the roles given to them now, as well as the different powers these arms of government possessed previously as opposed to now. Parliamentary sovereignty means that Parliament is the supreme law making authority in a state. Parliament is dominant. It comes into existence with a doctrine of Parliamentary sovereignty. This Doctrine according to Albert Dicey, consist of two propositions. Firstly, Parliament has the right to make or unmake any and all laws. Secondly, no person or body may override or set aside legislation made by Parliament. South Africa had inherited Parliamentary sovereignty from the British law. So Parliament has total control over the state and the courts cannot do much to remove legislation made by Parliament it as they don’t have the power to do so. The above mentioned is evident in the case Harris v Minister of the interior and another where Parliament enacted a statute (the separate Representation of voters Act 46 of 1951) which provided separate representation of European and non-European voters in the Cape. In effect in disqualifies potential voters in the Cape on the basis of their race or colour. The court ruled that the Act was invalid on procedural grounds. Parliament then enacted another statute which would allow a special court of Parliament to review decisions of the Appellate division which were related to validity of legislation. The Act was again challenged and the court ruled it was invalid. The government then finally got the voters Act validated and achieved its goal by packing the senate to increase the number of Government supporters and then amended the Constitution and voting rights were taken away. The courts (Judiciary) therefore had only limited power in declaring Acts invalid as Parliament (Legislatures) held all powers and could draft legislation as they pleased. This lasted for many years and is the main reason why Apartheid lasted so long in South Africa. Parliamentary sovereignty no longer exists in South Africa. We now live in a Constitutional Democracy where there is constitutional supremacy. Constitutional supremacy refers to the Constitutions rules which are binding to all branches of the state and have priority over any rules made by the judiciary, executive and legislatures. Section 2 of the 1996 Constitution emphasis this as it states “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 imposed.” This means that all organs of state are bound and subjects to the authority of the Constitution and it is therefore the supreme law of the land. Their is now a separation of power and this power is divided between the executive, legislature and judiciary. The President as head of state and head of government (section 83 of the Constitution) dominates the executive, in that the Cabinet Ministers are appointed and dismissed by President (section 91(2)). Some provision is also made in the Constitution for Parliamentary control over the executive; the National Assembly may remove the President from office by a two-thirds majority vote. Parliament is made up of two chambers: the National Assembly and the National Council of Provinces (section 42). Both are involved in the adoption of legislation and amendment of the Constitution. Parliamentary legislation is now subject to judicial scrutiny for constitutionality. So the legislation drafted is reviewed to see whether it is in line and subject to the Constitution. The legislatures may also delegate legislation to the executive. This was questioned in the Executive Council of the Western Cape Legislature v President of the Republic of South Africa case. The validity of the transition Act was questioned,...
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