How Do I Read a Section of the Constitution?

The Constitution is long, but it is written in comparatively plain English and it comes with its own instruction manual.

Section 8 — the interpretation rule

So the order is: Schedule 1 first, then the underlying law. Ordinary statutory interpretation under the Interpretation Act (Chapter 2) governs Acts of Parliament, not Constitutional Laws.

Reading the numbering

• Sections are numbered straight through: 1 to 275, with inserted sections marked by letters — 187A, 216A, 220B. A letter tells you the provision was added by amendment.
• Subsections are in round brackets: 42(2). Paragraphs follow: 42(2)(b). Subparagraphs use roman numerals: 35(1)(b)(ii).
• Parts use roman numerals, Divisions and Subdivisions Arabic numerals and letters. A citation like Division III.3 means Part III, Division 3 — the Basic Rights.
• Schedule provisions are cited as Sch.1.16 or Sch.2.2.

Some Schedule 1 rules worth knowing

Other rules of practical use:

• Sch.1.15 — residence. Where a Constitutional Law requires permanent or continuous residence, an Organic Law may provide how temporary absence is treated. “Temporary absence” means absence for temporary purposes with the intention of returning. This matters for citizenship and for the section 103(2) electorate residence requirement.
• Sch.1.17 — repeal. Repealing a Constitutional Law does not revive what was not in force before the repeal, affect its previous operation or anything duly done under it, affect rights, privileges, obligations or liabilities acquired or incurred under it, or affect penalties incurred.
• Sch.1.18 — disallowance, which works with section 116 on subordinate legislative enactments.

Sections 24 and 39 — what a court may look at

Section 24: the official records of debates and of votes and proceedings in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee, and in the Constituent Assembly on the draft Constitution — together with that report (the Final Report of 13 August 1974) and any documents tabled in connection with those debates — may be used, so far as relevant, as aids to interpretation.

Section 39(3): in deciding whether something is reasonably justifiable in a democratic society, a court may consider the Constitution generally and especially the National Goals and Basic Social Obligations; the UN Charter; the Universal Declaration of Human Rights; the European Convention on Human Rights; judgments of international courts; previous laws and decisions here and elsewhere; the Constitutional Planning Committee’s Final Report; declarations of the International Commission of Jurists; and any other material the court considers relevant.

Watch for “non-justiciable”

The Constitution says in terms where a question is not for the courts. Examples:

• s 25(1) — the National Goals, subject to ss 25(3) and (4);
• s 63(1) — the Basic Social Obligations, subject to exceptions;
• s 86(4) — what advice was given to the Head of State, and by whom;
• s 87(2) — whether a person is of good standing enjoying general respect;
• s 99(4) — the descriptive statement of the three arms;
• s 143(3) and s 169(5), s 170(4) — whether occasions for acting appointments have arisen;
• s 187C(7) — the adequacy of provision for provincial government;
• s 62(2) — acts done in “deliberate judgement”, subject to s 155(5).

A method for reading any section

1. Read the whole section, including every proviso and exception.
2. Follow the cross-references. The Constitution names them in brackets — use them.
3. Identify which Part and Division it sits in. For a right, that tells you whether it is fundamental or qualified.
4. Check the majority needed to change it under section 17 — a three-quarters provision is one the drafters ranked highly.
5. Check Schedule 1 for a rule affecting words, time limits or residence.
6. Apply section 25(3): where a reading that gives effect to the National Goals is reasonably open, prefer it.
7. Read the current text. The Constitution is amended often; read it on PacLII, not from a summary.