Constitutional & Human Rights Law

Constitutional law is that body of law that defines the role, powers, and structure of different entities within a state, namely, the executive, the legislature and the judiciary. It concerns the legitimate exercising of state power and prescribes remedies where there has been an abuse of power. These abuses, or transgressions, may occur in any branch of the state – for example the executive may seek to introduce policies that violate constitutional standards, or the legislature may make laws that infringe upon the fundamental rights of its citizens, or the judiciary may impermissibly trespass into or be excluded from certain aspects of society – and they may occur at any level of government within the state be it at the national, provincial or local government sphere. All of these concerns trigger constitutional issues and ultimately become the work of constitutional lawyers.

Constitutional law is therefore predominantly concerned with how government power is exercised. The Constitution is South Africa’s supreme law. It requires that all laws and conduct comply with a basic minimum standard. But sometimes laws or conduct falls short of this minimum standard. This is the domain of constitutional lawyers: they review government laws and government conduct to ensure that state power is exercised within permissible bounds. In this way constitutional law is a mechanism for protecting important institutions such as democracy and accountability, and important principles such the rule of law, separation of powers and the prohibition against arbitrariness.

Human rights are protected in chapter 2 of the Constitution, the Bill of Rights. These include the fundamental rights such as those to life, equality, human dignity, and privacy. They also include certain freedoms such as those of expression, religion, belief and opinion. Some of the rights in the Constitution place a positive obligation on the government to provide certain conditions necessary for a dignified life, such as adequate housing, education and healthcare. Most constitutional litigation involving citizens suing the state revolves around the human rights contained in chapter 2. This, again, is an important task within the preserve of constitutional law and constitutional lawyers. It finds relevance in all areas of our life where the government is given a mandate to regulate because it seeks to ensure that the government exercises its regulatory powers legitimately: for example when it regulates industries such as mining, energy and medical schemes, or when it regulates the economy such as trade, financial markets and fiscal restraints, and even when it regulates aspects of our private lives such as education and recreation.