The 1996 Constitution of the Republic of South Africa is the supreme law of the Republic and in enjoying this status it is prescribing the composition of the three different arms of government as well as each branch’s status within the new constitutional dispensation. Prior to this era of constitutional supremacy South Africa was subject to the principle of parliamentary sovereignty, an era where the courts could only challenge legislation on procedural grounds, but had no general power to declare legislation unconstitutional. The Constitution further provides for a separation of powers between these arms of government, and it has vested the judicial authority in the courts and conferred strong judicial review powers upon the Constitutional Court. The head of executive has recently argued that “the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”. The preceding quote is one of many statements and claims that forms part of a national debate on the nature and scope of the Constitutional Court’s powers in South Africa. The Constitutional Court has in recent years handed down judgments that were not favourable to the legislative6 and executive arms of the South African government. / Magister Legum - LLM

Magister Legum - LLM / The 1996 Constitution of the Republic of South Africa is the supreme law of the Republic and in enjoying this status it is prescribing the composition of the three different arms of government as well as each branch’s status within the new constitutional dispensation. Prior to this era of constitutional supremacy South Africa was subject to the principle of parliamentary sovereignty, an era where the courts could only challenge legislation on procedural grounds, but had no general power to declare legislation unconstitutional. The Constitution further provides for a separation of powers between these arms of government, and it has vested the judicial authority in the courts and conferred strong judicial review powers upon the Constitutional Court. The head of executive has recently argued that “the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”. The preceding quote is one of many statements and claims that forms part of a national debate on the nature and scope of the Constitutional Court’s powers in South Africa. The Constitutional Court has in recent years handed down judgments that were not favourable to the legislative and executive arms of the South African government. These judgments are evident in the existing and on-going tension between, the three arms of government.

The legislative supremacy of Parliament, a dominant characteristic of the Westminster system of government, has for a long time been the basic norm of South African constitutional law. In line with the Westminster prototype, the South African judiciary did not have the power to review the substantive validity of legislation. The creation of a new order, based on a supreme Constitution which entrenches fundamental rights and gives the courts the power to review not on! y the procedural validity but also the substantive validity of legislation, has brought about a significant change. This thesis examines the role of the South African judiciary during the transition from a system of legislative supremacy to one of constitutional supremacy and judicial review. The thesis is based on the interim Constitution of 1993. The entrenchment of fundamental human rights in the Constitution implies a greater role for the judiciary. The judiciary has to apply and interpret the human rights provisions vigorously and fearlessly. The human rights provisions have to be applied and interpreted with a keen awareness that a system of constitutional supremacy differs materially from one of legislative supremacy. In a system of legislative supremacy the intention of the legislature is paramount; in a system of constitutional supremacy the Constitution is supreme and overrides all laws, including Acts of Parliament, which are in conflict with it The doctrine of legislative supremacy has in the past led to a literalist and mechanical application of law; this has had a negative impact on the constitutional role of the South African judiciary. The provisions of a Constitution, especially its human rights provisions, are framed in wide and open ended terms; these need to be elaborated before they can be applied; the nature of these provisions, their purpose and the larger objects of the Constitution are important. The interpretation of the provisions of a supreme Constitution is incompatible with a literalistic and mechanical approach. A purposive and liberal or generous approach is called for. A framework and approach to the interpretation and application of South Africa's Bill of Rights are suggested in the thesis. / Constitutional International and Indigenous Law / LL.D.

The purpose of this thesis is to discuss the constitutional right of the Métis to hunt in the Canadian legal consciousness in the four levels of court that heard the Powley case and comment on the judicial approach and observations. After a comparative analysis of the precedent setting Powley decision, a brief examination is undertaken of two recent cases regarding Métis rights in Canada: Laviolette and Willison. <p>Ultimately, the purpose of this research has been to show the treatment of Métis and First Nations Aboriginal rights have not been treated equally and to confront the challenges that this analysis raises. Section 35 of the Canadian Constitution has not provided the protections to Aboriginal rights that one would expect. In order to make changes to the legal system I have identified some fundamental problems with Aboriginal law in Canada associated with the identification of the source of those rights. <p>Further, I have made some suggestions on the approaches that could be taken to change the direction of the Supreme Court of Canada regarding its interpretations of Métis rights.

The purpose of this thesis is to discuss the constitutional right of the Métis to hunt in the Canadian legal consciousness in the four levels of court that heard the Powley case and comment on the judicial approach and observations. After a comparative analysis of the precedent setting Powley decision, a brief examination is undertaken of two recent cases regarding Métis rights in Canada: Laviolette and Willison. <p>Ultimately, the purpose of this research has been to show the treatment of Métis and First Nations Aboriginal rights have not been treated equally and to confront the challenges that this analysis raises. Section 35 of the Canadian Constitution has not provided the protections to Aboriginal rights that one would expect. In order to make changes to the legal system I have identified some fundamental problems with Aboriginal law in Canada associated with the identification of the source of those rights. <p>Further, I have made some suggestions on the approaches that could be taken to change the direction of the Supreme Court of Canada regarding its interpretations of Métis rights.

The legislative supremacy of Parliament, a dominant characteristic of the Westminster system of government, has for a long time been the basic norm of South African constitutional law. In line with the Westminster prototype, the South African judiciary did not have the power to review the substantive validity of legislation. The creation of a new order, based on a supreme Constitution which entrenches fundamental rights and gives the courts the power to review not on! y the procedural validity but also the substantive validity of legislation, has brought about a significant change. This thesis examines the role of the South African judiciary during the transition from a system of legislative supremacy to one of constitutional supremacy and judicial review. The thesis is based on the interim Constitution of 1993. The entrenchment of fundamental human rights in the Constitution implies a greater role for the judiciary. The judiciary has to apply and interpret the human rights provisions vigorously and fearlessly. The human rights provisions have to be applied and interpreted with a keen awareness that a system of constitutional supremacy differs materially from one of legislative supremacy. In a system of legislative supremacy the intention of the legislature is paramount; in a system of constitutional supremacy the Constitution is supreme and overrides all laws, including Acts of Parliament, which are in conflict with it The doctrine of legislative supremacy has in the past led to a literalist and mechanical application of law; this has had a negative impact on the constitutional role of the South African judiciary. The provisions of a Constitution, especially its human rights provisions, are framed in wide and open ended terms; these need to be elaborated before they can be applied; the nature of these provisions, their purpose and the larger objects of the Constitution are important. The interpretation of the provisions of a supreme Constitution is incompatible with a literalistic and mechanical approach. A purposive and liberal or generous approach is called for. A framework and approach to the interpretation and application of South Africa's Bill of Rights are suggested in the thesis. / Constitutional International and Indigenous Law / LL.D.

A modulação temporal de efeitos como técnica de decisão possibilita ao Supremo Tribunal Federal a mitigação dos efeitos retroativos da declaração de inconstitucionalidade, ao mesmo tempo em que resguarda o princípio da supremacia da Constituição. Nos casos em que há mudança de jurisprudência, atua como importante mecanismo de salvaguarda das legítimas expectativas dos jurisdicionados na estabilidade dos julgados do Tribunal Constitucional. Em ambas as hipóteses, concretiza o princípio da segurança jurídica, inclusive na sua vertente subjetiva, a proteção da confiança legítima e assegura a melhor realização dos interesses públicos, próprios de uma sociedade pluralista. / The prospective doctrine as a decision technique makes possible the mitigation of the retroactive effects of the unconstitutionality declaration to the Brazilian Federal Supreme Court, at the same time it protects the Constitution supremacy principle. In cases with statement of overruling precedents, it plays an important role in protecting the legitimate expectations of the citizens in the stability of the Constitutional Court precedents. In both cases, it enforces the principle of legal certainty, including its subjective aspect, the legitimate confidence protection and it assures the best fulfilment of the public interests that are typical of a pluralist society.

A modulação temporal de efeitos como técnica de decisão possibilita ao Supremo Tribunal Federal a mitigação dos efeitos retroativos da declaração de inconstitucionalidade, ao mesmo tempo em que resguarda o princípio da supremacia da Constituição. Nos casos em que há mudança de jurisprudência, atua como importante mecanismo de salvaguarda das legítimas expectativas dos jurisdicionados na estabilidade dos julgados do Tribunal Constitucional. Em ambas as hipóteses, concretiza o princípio da segurança jurídica, inclusive na sua vertente subjetiva, a proteção da confiança legítima e assegura a melhor realização dos interesses públicos, próprios de uma sociedade pluralista. / The prospective doctrine as a decision technique makes possible the mitigation of the retroactive effects of the unconstitutionality declaration to the Brazilian Federal Supreme Court, at the same time it protects the Constitution supremacy principle. In cases with statement of overruling precedents, it plays an important role in protecting the legitimate expectations of the citizens in the stability of the Constitutional Court precedents. In both cases, it enforces the principle of legal certainty, including its subjective aspect, the legitimate confidence protection and it assures the best fulfilment of the public interests that are typical of a pluralist society.

Les juridictions constitutionnelles ont sans doute de larges compétences interprétatives. Toutefois, l’ampleur de ces compétences varie dans les différents ordres juridiques selon l’aptitude que les autres organes et autorités de l’Etat peuvent adopter devant ces interprétations. Une juridiction constitutionnelle a une suprématie interprétative dans un Etat en particulier si ses interprétations doivent être obligatoirement respectées et appliquées par tous les autres organes et autorités de l’Etat. Si ses interprétations sont seulement obligatoires pour quelques autorités, cette juridiction constitutionnelle a simplement une compétence interprétative supérieure vis-à-vis de ces autorités. Afin d’identifier les plus larges compétences interprétatives des juridictions constitutionnelles, la démarche comparative est hautement recommandée parce qu’elle permet de distinguer plus facilement les limitations que ces juridictions peuvent rencontrer dans leurs ordres juridiques respectifs. Ainsi, en suivant cette démarche, seront identifiées l’ampleur des compétences interprétatives des juridictions constitutionnelles française et colombienne et leurs répercussions dans chacun de leurs Etats. / Constitutional jurisdictions should have wide interpretative powers. However, the scope of these competences varies in different legal systems depending on the ability of other authorities to adopt such interpretations. A constitutional court has interpretative supremacy in a particular State, if its interpretations are binding for all other departments of the State. If its interpretations are just binding for some authorities, this constitutional court would simply have a superior interpretative competence toward those authorities. In order to determine the broader interpretative powers of the constitutional courts, the comparative approach is highly recommended because it makes easier to distinguish the limitations that these jurisdictions may encounter in their respective legal systems. In this way, the scope of the interpretative powers of the French and Colombian constitutional courts will be identified as well as their repercussions in each of its states.

The legislative supremacy of Parliament has dominated the constitutional law of South Africa for a very long time. In the pre-constitutional era, the judiciary had no power to question the deeds of Parliament. Despite the need for the judiciary to be independent from the two other governmental branches to execute its function effectively, it was surely dependent on them. However, the creation of the Office of the Chief Justice (OCJ) as a separate governmental department by the Constitutional Seventeenth Amendment Act, read together with Superior Court Act, mandated by the requirements of a supreme Constitution (and not Parliament), changed things so that the judiciary is no longer dependent on government for its day-to-day administration. This thesis examines the independence of the OCJ and its role in promoting judicial transformation in the new South Africa. / Public, Constitutional and International Law / LL. M. (Human Rights Law)