scholarly journals Who are "the people" in the German Constitution? A critique of , and contribution to , the debate about the right of foreigners to vote in multilevel democracies

2020 ◽  
Vol 24 ◽  
Author(s):  
Jelena Bäumler
Keyword(s):  
South Africa ◽  
Voting Rights ◽  
Constitutional Court ◽  
Federal States ◽  
The People ◽  
German Constitution ◽  
Multi Level ◽  
Multiple Levels ◽  
Right To Vote ◽  
The Right

ABSTRACT Democracy means power to the people, but it is not always clear who belongs to "the people". The question has become pertinent in the age of migration where large groups of foreigners permanently reside outside their countries of nationality. The economic, cultural, and political integration of these foreigners is one of the pressing problems faced by democratic States in both the developed and developing worlds. One question is : whether resident non-citizens should be granted the right to vote. The answer to this question depends on who belongs to "the people". In federal and quasi-federal States with multiple levels of government the further question arises : whether "the people" is a homogenous concept that applies uniformly across all levels of government. This article contributes to the debate about the right of foreigners to vote in democratic States with multiple levels of government, such as, South Africa and Kenya. It does so by discussing the German response to the problems mentioned above. The dominant view of the German Federal Constitutional Court since the 1990s has been that "the people" only includes "German citizens" , and that attempts by lower levels of government to extend the right to vote to foreigners from Africa and elsewhere are unconstitutional. In this article I explore and critique this conventional view. I then present a positive case for the extension of voting rights to resident non-citizens under the German Constitution. Many of the arguments would apply with equal force to the debate about the right to vote of foreigners in African multi-level democracies, such as, South Africa and Kenya. Keywords: Denizenship, Citizenship, Voting rights, Nationality law, Multi-level government, The people, Foreigners, Residents, Affected persons principle, Democracy.

scholarly journals HAK MEMILIH PENYANDANG DISABILITAS MENTAL DALAM PEMILIHAN UMUM SERENTAK TAHUN 2019 DI INDONESIA

2019 ◽  
Vol 10 (1) ◽  
pp. 99
Author(s):  
Anies Prima Dewi ◽  
Idea Islami Parasatya
Keyword(s):  
Mental Health Professionals ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Constitutional Court ◽  
Mental Disabilities ◽  
The People ◽  
Permanent Memory ◽  
General Elections ◽  
Right To Vote ◽  
The Right

This study discusses the implementation of elections as an indicator in the democratic system because it is the people who determine the direction of the policy of state power through their political suffrage. The people as the highest authority in their voting rights are very important in the implementation of elections. After the issuance of the Constitutional Court ruling Number 14/PUU-XI/2013 concerning the implementation of simultaneous general elections in 2019, what became much of a conversation and debate was about the voters' rights for persons with mental disability. This study uses the normative legal research method. Using secondary data sources and qualitative descriptive analysis. The results of this study show that the KPU Commissioner stated that persons with mental disabilities can exercise their right to vote by bringing a letter of recommendation or information from a doctor to be able to exercise their right to vote at the polling station (TPS). This is confirmed after the decision of the Constitutional Court Number 135/PUU-XIII/2015 which states Article 57 paragraph (3) of the Election Law does not have binding legal force as long as the phrase 'mentally disturbed or memory' is not interpreted as' experiencing mental disorders and/or permanent memory impairment which according to mental health professionals has eliminated a person's ability to vote in elections'. This reinforces and becomes a normative basis that persons with mental disabilities have the right to vote in the simultaneous general elections in 2019.Keywords: general elections; people with mental disabilities; voting rights.ABSTRAKPenelitian ini mebahas tentang pelaksanaan pemilihan umum menjadi indikator dalam sistem demokrasi karena rakyatlah yang menjadi penentu arah kebijakan kekuasaan negara melalui hak pilihan politiknya. Rakyat sebagai pemegang kekuasaan tertinggi dalam hak pilihnya menjadi sangat penting dalam pelaksaan pemilihan umum. Pasca keluarnya putusan Mahkamah Konstitusi Nomor 14/PUU-XI/2013 mengenai pelaksanaan pemilihan umum serentak tahun 2019, yang menjadi banyak perbincangan dan perdebatan adalah mengenai hak pemilih bagi penyandang diisabilitas mental. Penelitian ini menggunakan metode Penelitian Hukum normatif. Menggunakan sumber data sekunder serta analisis deskriptif kualitatif. Adapun hasil penelitian ini terlihat bahwa Komisioner KPU menyatakan penyandang disabilitas mental dapat menggunakan hak pilihnya dengan membawa surat rekomendasi atau keterangan dari dokter untuk bisa menggunakan hak pilihnya di tempat pemungutan suara (TPS). Hal ini dipertegas pasca putusan Mahkamah Konstitusi Nomor 135/PUU-XIII/2015 yang menyatakan Pasal 57 ayat (3) Undang-Undang Pemilu tidak mempunyai kekuatan hukum mengikat sepanjang frasa ‘terganggu jiwa atau ingatannya’ tidak dimaknai sebagai ‘mengalami gangguan jiwa dan/atau gangguaningatan permanen yang menurut professional bidang kesehatan jiwa telah menghilangkan kemampuan seseorang untuk memilih dalam pemilihanumum’. Hal ini memperkuat dan menjadi dasar normatif bahwa penyandang disabilitas mental memiliki hak pilih dalam pelaksanaan pemilihan umum serentak tahun 2019.Kata kunci: hak memilih; pemilihan umum; penyandang disabilitas mental.

Legal Power and the Right to Vote: Does the Right to Vote Confer Power?

2017 ◽  
Vol 30 (1) ◽  
pp. 5-22
Author(s):  
Ludvig Beckman
Keyword(s):  
Political Power ◽  
Causal Effect ◽  
Voting Rights ◽  
Legal Analysis ◽  
Electoral Outcomes ◽  
Legal Power ◽  
The People ◽  
Legal Effect ◽  
Right To Vote ◽  
The Right

It is widely believed that voting rights confer power to individual voters as well as to the collective body of the electorate. This paper evaluates this notion on the basis of two conceptions of political power: the causal view, according to which power equals the ability to exert causal effect, and the legal view, according to which power equals the legal ability to produce legal effect. The proposition defended is that causal conceptions of power are unable to account for the view that voting rights confer power to either individuals or collectives. In particular, the theory according to which the powers conferred by the vote equal the probability of being decisive or “pivotal” in elections does not justify the ascription of power to voters. It does not because the probability of being influential is not a valid interpretation of power as the capacity to mobilize sufficient causal effect to determine an outcome. In addition, causal conceptions of power are unable to recognize the people as the unique owner of political power. The powers exercised by the members of the electorate appear to be just one among several causes that contribute to determine electoral outcomes. In the end, the legal analysis of power proves superior. Power in a democracy is placed with the people as a legal category vested with the legal capacity to revise the legal relationship between individuals and the state.

scholarly journals After Mazibuko: Exploring the responses of communities excluded from South Africa's water experiment

2017 ◽  
Vol 61 (1) ◽  
pp. 57-81 ◽  
Author(s):  
Nathan John Cooper
Keyword(s):  
South Africa ◽  
Resource Allocation ◽  
Social Engagement ◽  
Water Allocation ◽  
Constitutional Court ◽  
Water Access ◽  
Cultural Phenomenon ◽  
Legal Provisions ◽  
Constitutional Right ◽  
The Right

AbstractDespite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

Legal Pluralism, Human Rights and the Right to Vote: The Case of the Noken System in Papua

2021 ◽  
Vol 22 (2) ◽  
pp. 255-286
Author(s):  
Ignatius Yordan Nugraha
Keyword(s):  
Human Rights ◽  
Local Population ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Right To Vote ◽  
The Right ◽  
Legal Pluralist

Abstract The goal of this article is to explore the clash between international human rights law and a legal pluralist framework in the case of the noken system and also to investigate potential solutions to the clash. Elections in Indonesia are generally founded on the principle of direct, universal, free, secret, honest and fair voting. There is a notable exception in the Province of Papua, where tribes in the Central Mountains area are following the noken system. Under this system, votes are allocated to the candidate(s) based on the decision of the big man or the consensus of the tribe. The Indonesian Constitutional Court has accepted this practice as reflecting the customs of the local population. However, this form of voting seems to be contrary to the right to vote under international human rights law, since article 25(b) of the International Covenant on Civil and Political Rights stipulates that elections shall be held genuinely by universal suffrage and secret ballot to guarantee the free will of the electors. Consequently, the case of the noken system in Papua reflects an uneasy clash between a legal pluralist approach and universal human rights.

scholarly journals What has the Constitutional Court Given Us? Afriforum v University of the Free State 2018 (4) BCLR 387 (CC)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Mokgadi Margaret Mokgokong ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
Higher Education ◽  
South Africa ◽  
South African ◽  
Further Education ◽  
The State ◽  
Constitutional Court ◽  
Official Language ◽  
National Party ◽  
The Right ◽  
To Receive

The history of South Africa is an unpleasant one. It was a society based on racial segregation with the promotion of Afrikaner culture and the Afrikaans language above all other languages. This can be traced to the architect of apartheid, the Afrikaner National Party, which introduced apartheid. Afrikaans-speaking people, through the Afrikaner National Party, dominated South Africa politically. Their language too, was promoted above all other languages. For example, Afrikaans enjoyed more privileges than other languages in that it was used for drafting laws, as the language of record in the courts and was also the only compulsory subject for learning. The apartheid government, through its racial policies, used the Afrikaans language as a tool to control Black South Africans in almost all spheres of life, including education, which had to be undertaken in Afrikaans. It is therefore no surprise that there were five universities that offered education mainly in Afrikaans. These are Stellenbosch University, University of the Free State, University of Pretoria, Potchefstroom University for Christian Higher Education (now North-West University) and Randse Afrikaanse Universiteit (now University of Johannesburg). The use of the Afrikaans language as an instrument for social control was not sustainable. The new constitutional dispensation ushered in an era wherein respect for fundamental human rights and freedoms is at the top of the South African agenda. The right to further education is constitutionally recognised in section 29(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 29(2) of the Constitution further recognises and embraces the diversity of South African society and provides that “everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable” (s 29(b) of the Constitution). The State has an obligation to take reasonable measures on a progressive basis to ensure that further education is available and accessible (s 29(1)(b) of the Constitution). In ensuring “effective access to and implementation” of the right to further education, It is notable that, in its endeavour to make further education available and accessible, the State is required to consider several factors such as language policies. In an effort to facilitate the realisation of the right to further education, the Higher Education Act (101 of 1997) was enacted in order inter alia to “redress past discrimination and ensure representivity and equal access to higher education institutions” (preamble to the Act).In the UFS case (CC), the Constitutional Court applied section 29(1)(b) of the Constitution, which provides for the right to further education and the “right to receive education in the official language or languages of [one’s] choice”. This note centres on this decision and seeks to critically discuss and analyse both the majority and minority decisions of the Constitutional Court. The question presented is whether the Constitutional Court has given the public a solution to the issue surrounding the use of either Afrikaans or English as a language medium of instruction in the higher education sector and what the effect of this has been on the development of other languages. The case note is divided into five sections. The facts of the case, the issues put before the court for consideration and the finding of the court are discussed in part 2. Part 3 contains an analysis of the minority and majority judgments. Part 4 considers whether the court has given us any solutions. Part 5 sets out the authors’ recommendations and their conclusions.

19 Art. 20 GG: Democracy

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Public Information ◽  
Voting Rights ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Political Will ◽  
Information Campaigns ◽  
The People ◽  
State Authority ◽  
Federal Constitutional ◽  
District Assemblies

This chapter discusses the democracy principle as articulated in Art. 20 of the Grundgesetz (GG). Art. 20 para. 2 GG defines democracy in this manner: ‘All state authority is derived from the people. It shall be exercised by the people’. GG associates the concept of democracy with the concept of the state. Although the Federal Constitutional Court has avoided any reference to the principle of democracy, it has interpreted some fundamental rights in light of the principle. The chapter first considers the Court's jurisprudence regarding political will formation in a representative democracy, focussing on cases dealing with voting rights of foreigners, elections to district assemblies, popular referendum, and public-information campaigns. It then examines cases relating to exercise of state authority, with emphasis on the position of Parliament in relation to other branches of government, forms of democratic legitimation, and functional self-government.

scholarly journals Uptake and knowledge of voting rights by adult in-patients during the 2010 UK general election

2012 ◽  
Vol 36 (4) ◽  
pp. 126-130 ◽  
Author(s):  
James McIntyre ◽  
Masum Khwaja ◽  
Venkata Yelamanchili ◽  
Sobia Naz ◽  
Maria Clarke
Keyword(s):  
General Population ◽  
Voting Rights ◽  
General Election ◽  
Clinical Implications ◽  
Psychological Barriers ◽  
Registration Process ◽  
Written Information ◽  
Right To Vote ◽  
The Right ◽  
Information Barrier

Aims and methodThis study explores knowledge and uptake of the voting rights of adult in-patients in the 2010 UK general election. A clinician-completed survey was used.ResultsEligible to vote psychiatric adult in-patients were half as likely to register as the general population and half as likely to vote if registered. Nine out of ten of those unregistered cited a lack of knowledge of their eligibility to vote or of the registration process. Long-stay patients were particularly disenfranchised.Clinical implicationsMany patients and staff remain unaware of the new rules which have given a greater proportion of in-patients the right to vote and have simplified the registration and voting processes. This information barrier may be addressed in future elections by providing timely written information to both patients and staff. Once registered, patients may need further support to overcome practical and psychological barriers, and cast their vote.

Diasporas, Extraterritorial Representation, and the Right to Vote

2015 ◽  
Vol 52 ◽  
pp. 185-221
Author(s):  
FRÉDÉRIC MÉGRET ◽  
RAPHAËL GIRARD
Keyword(s):  
Voting Rights ◽  
Foreign Nationals ◽  
National Assembly ◽  
Territorial Sovereignty ◽  
Main Effect ◽  
Right To Vote ◽  
The Right ◽  
Domestic Affairs

AbstractThis article argues that Canada’s policy of refusing extraterritorial electoral constituencies within its borders does not protect its territorial sovereignty or add any protection against foreign interference in its domestic affairs. Rather, its main effect is to alienate thousands of dual or foreign nationals residing in Canada by preventing them from being directly represented in their home state’s national assembly or legislature and, in some cases, from exercising their only voting rights.

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