Module 3: Section 3
How do we work with the Constitution?
It has been said that legislative counsel need not be specialists in any branch of law. However, this is not usually the case for constitutional law. Since much legislation deals with public law matters, legislative counsel have to be familiar with the principles of public law and have a sound working knowledge of administrative law. But overriding even this, you need to be thoroughly conversant with the Constitution of your jurisdiction and its associated legislation and with the ways in which the courts have interpreted and apply their provisions. Be prepared to work out the constitutional implications of legislative proposals and look out for any that may not be constitutional.
In this Section, we concentrate on drafting constraints that arise from the Constitution and constitutional law. We are not concerned with drafting constitutional instruments. That is a specialist area of drafting that arises relatively infrequently and is generally undertaken by legislative counsel with considerable experience. At the beginning of a drafting career, your first priority is to establish how constitutional instruments influence drafting practices and choices and the ways in which the Constitution can set limits within which you must work.
In this Section, the objectives are to enable you to work within the constraints imposed by your Constitution and to take full account of its requirements so that the legislation is not vulnerable to legal challenge.
This Section is divided into two subsections organised in terms of the following questions:
- THE CONSTITUTION AND LEGISLATIVE COUNSEL
- What is legislative counsel’s responsibility?
- How should we deal with instructions that appear inconsistent with the Constitution?
- What constitutional instruments are we likely to need?
- What constitutional principles are important for drafting?
- supremacy of the Constitution;
- restrictions on constitutional amendment;
- separation of powers;
- the rule of law;
- limitation of legislative authority;
- delegation of legislative power;
- principles of state policy;
- protection of fundamental rights and freedoms.
- PARTICULAR CONTITUTIONAL CONSTRAINTS
- What are the main constraints on legislative functions and procedures?
- What are the main constraints on judicial functions and procedures?
- What are the main constraints on executive functions and procedures?
- What are the main constraints on public service functions and official appointments?
- What are the main constraints with respect to financial matters?
Studying this Section
This Section is written on the assumption that you are already familiar with your Constitution and have a good understanding of the constitutional law of your jurisdiction. But if you come across concepts or aspects of constitutional law in this Section with which you are not familiar, consult a standard textbook on the matter. If you are already thoroughly conversant with this area of law, you may be able to work through this Section quite quickly.
Throughout this Section, the activities require you to confirm or find out about features of constitutional law as they relate to your jurisdiction. This may require a little research and certainly a close examination of your Constitution. But time spent on this will stand you in good stead in the future, even though the information may not be required for the immediate purposes of these Materials.
You will also be invited to search out other legislation that supplements the Constitution. So, this Section provides an opportunity for you collect documents that, as a legislative counsel, you should always have at hand.
Make sure that you have a completely up-to-date copy of the Constitution for your personal use. You will need to refer to it frequently during this Section and Section 4.