scholarly journals An assessment of the constitutionality of the COVID-19 regulations against the requirement to facilitate public participation in the law-making and/or administrative processes in South Africa

2021 ◽  
Vol 25 ◽  
pp. 1-36
Author(s):  
Ntokozo Sobikwa ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Public Participation ◽  
Legal Framework ◽  
Constitutional Democracy ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Law Making

The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.

7. Rule of law

2019 ◽  
pp. 143-163
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
The Rule Of Law ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Key Terms ◽  
Core Meaning ◽  
External Measure ◽  
Law Making

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

8. Rule of law

2021 ◽  
pp. 166-187
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
The Rule Of Law ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Key Terms ◽  
Core Meaning ◽  
External Measure ◽  
Law Making

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

scholarly journals CONFLICT BETWEEN PARTICIPATORY AND REPRESENTATIVE DEMOCRACY: A CALL FOR MODEL LEGISLATION ON PUBLIC PARTICIPATION IN THE LAW-MAKING PROCESS IN SOUTH AFRICA

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Moses Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Public Participation ◽  
Representative Democracy ◽  
Court Cases ◽  
Consultation Process ◽  
The People ◽  
The Law ◽  
The Republic ◽  
Elected Representatives ◽  
Law Making

The Constitution of the Republic of South Africa, 19961 mandates legislatures at various levels of government to ensure public participation in the law-making process. The Constitution, however, does not map out the parameters of public participation as far as the law-making process is concerned. Thus, a number of questions remain largely unanswered. For instance, does public participation merely constitute consulting with the people? Does it, perhaps, go as far as to require the legislature to consider the views of the people? Supposing the views of the people are considered, does public participation suggest that the end results of the consultation process should reflect the views of the people? As the answers to the foregoing questions are far from conclusive, the aim of this paper is to critically examine the nature of the relationship between participatory and representative democracy in the law-making process in order to ascertain how the courts have resolved conflicts that involve the previously mentioned forms of democracy. This will be done through examining various court cases in which their own elected representatives disregarded the views of the electorate. The argument presented in this paper is that participatory and representative democracies are in conflict with each other. The paper further advocates for the adoption of model legislation on public participation in the law-making process.

A Call for Public Participation in the Treaty-making Process in South Africa: What can South Africa Learn from the Kingdom of Thailand?

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Public Participation ◽  
International Treaty ◽  
Legal Implications ◽  
Future Situation ◽  
Rules Of Procedure ◽  
The Republic ◽  
The Government ◽  
Personal Jurisdiction

On 2 August 2002 South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.

An analysis of stagnation in multilateral law-making – and why the law of the sea has transcended the stagnation trend

2021 ◽  
pp. 1-22
Author(s):  
Andreas Motzfeldt Kravik
Keyword(s):  
International Law ◽  
Current Trend ◽  
The United States ◽  
Legal Framework ◽  
Great Powers ◽  
Great Power ◽  
Law Of The Sea ◽  
The Law ◽  
Law Making ◽  
Multilateral Treaties

Abstract The article explores the current stagnation in multilateral law-making based on an analysis of recent treaty attempts across various subfields of international law. It further examines why the law of the sea has continued to evolve despite this trend. The article demonstrates that states still regularly seek multilateral treaties to address new challenges. While there is some evidence of general treaty saturation, it is the current inability of traditional great powers to negotiate new binding norms which is the most constraining factor on multilateral law-making. This in turn is related to deeper geopolitical shifts by which traditional great powers, notably the United States and its allies, have seen their relative influence decline. Until the current great power competition ends or settles into a new mode of international co-operation, new multilateral treaties with actual regulatory effect will rarely emerge. The law of the sea has avoided the current trend of stagnation for primarily three reasons (i) a global commitment to the basic tenets of the law of the sea; (ii) a legal framework that affords rights and obligations somewhat evenly disbursed, allowing less powerful states to use their collective leverage to advance multilateral negotiations, despite intermittent great power opposition; and (iii) the avoidance of entrenched multilateral forums where decisions are reached by consensus only.

The Concerns of the Founders

2020 ◽  
pp. 21-42
Author(s):  
Howard Gillman ◽  
Erwin Chemerinsky
Keyword(s):  
North America ◽  
Religious Diversity ◽  
Bill Of Rights ◽  
Free Exercise ◽  
Religious Doctrine ◽  
The Law ◽  
The Government ◽  
British Colonies ◽  
Law Making

In the century after the founding of the British colonies in North America, the traditional governing model of establishment (of an official religion) plus conformity (to government-approved religious doctrine and practice) was replaced by a view that the government should be secular and tolerant of religious diversity. The Constitution and the Bill of Rights constructed a government that claimed no relationship to any particular religion, insisted on no test for religious office, vested in the law-making body no authority to legislate on matters of religion, and specifically prohibited the passage of any law respecting an establishment of religion or prohibiting the free exercise thereof. Even with these historic changes, the Constitution left unresolved some basic questions about the meaning of the Religion Clauses.

scholarly journals How Does the Law and Policy Encourage Towards a Low Carbon Energy Transition in the Scotland?

2019 ◽  
Vol 24 ◽  
pp. 26-31
Author(s):  
Md. Raisul Islam Sourav
Keyword(s):  
Energy Transition ◽  
Legal Framework ◽  
Electricity Sector ◽  
Low Carbon ◽  
Law And Policy ◽  
The Law ◽  
The Government ◽  
Laws And Policies ◽  
The Uk ◽  
Low Carbon Energy

This article contains a doctrinal analysis of the law and policy encouragement towards a low carbon energy transition in the Scotland. To do this, the present article is primarily focused on electricity sector of the Scotland and its commitment towards a low carbon transition in this sector in coming years. This article analyzes the existing significant laws and policies in Scotland that encourage towards a low carbon transition. However, it also evaluates international obligation upon the Scotland and the UK, as well, towards this transition. Subsequently, it assesses the UK’s legal framework in this regard. However, Scotland is firmly committed to achieve its targets towards a low carbon transition in the power sector although it needs more incentive and tight observation of the government to smoothen the process.

scholarly journals KORUPSI LEGISLASI DALAM PEMBENTUKAN PERATURAN PERUNDANG-UNDANGAN

2014 ◽  
Vol 3 (3) ◽  
pp. 347
Author(s):  
Akhmad Adi Purawan
Keyword(s):  
Public Participation ◽  
Forming Mechanism ◽  
The Law ◽  
Law Making

<p>Meskipun Indonesia telah memiliki Undang-Undang Nomor 10 Tahun 2004 tentang Pembentukan Peraturan Perundang- undangan yang selanjutnya disempurnakan dengan Undang-Undang Nomor 12 Tahun 2011, tetapi kerawanan dalam proses pembentukan peraturan peraturan perundang-undangan yang mengarah pada bentuk perilaku koruptif masih terjadi. Dengan menggunakan metode yuridis normatif, studi ini mencari jawaban atas pertanyaan apakah pengaturan dalam Undang-Undang Nomor 12 Tahun 2011 telah mengantisipasi terjadinya korupsi legislasi dalam pembentukan peraturan perundang-undangan. Studi ini menyimpulkan bahwa secara normatif Undang-Undang Nomor 12 Tahun 2011 sudah cukup antisipatif dalam menciptakan mekanisme pembentukan peraturan perundang-undangan yang mengarah pada bentuk pencegahan terhadap praktik korupsi legislasi. Namun, perwujudan pembentukan peraturan perundang- undangan yang baik dan bersih sangat tergantung pada kualitas pelaksanaannya. Dari lima tahapan pembentukan peraturan perundang-undangan, studi ini menemukan tahap perencanaan dan pembahasan mengandung kerawanan yang cukup tinggi, sedangkan pada tahap penyusunan, penetapan/pengesahan, dan pengundangan kecil kemungkinan terjadi. Untuk meminimalisasi peluang terjadinya korupsi legislasi, studi ini mengusulkan empat prinsip yang dapat diterapkan, meliputi ketatalaksanaan, profesionalitas, justifikasi, dan partisipasi publik.</p><p>Indonesia has Law Number 10 year 2004 on drafting of the laws then its superseded by Law Number 12 year 2011 but the vulnerability in the law making process that lead to corruptive behaviour remain happens. By using juridical normative methods, this study seeks answers whether the regulation in the Law Number 12 year 2011 have been anticipating for the vulnerability of legislative corruption in law making process. This study conclude that normatively Law Number 12 year 2011 has been quite anticipative in forming mechanism of law making process which is lead to prevent legislative corruption practices. However, the embodiment of clean and good establishment of legislation is depend on the quality of its implementation. Among the stages of law making process , this study found that planning and discussion stages are quite vulnerable to legislative corruption, while preparation, enactment, and promulgation less likely occured. In order to minimize possibility of legislative corruption, this study proposes four principles can be applied icluded the management, professionalism, justification, and public participation.</p>

scholarly journals Analysis of the Connections Between Law and Morals, Between Customs and Contemporaneity

2020 ◽  
Vol 25 (39) ◽  
pp. 57-68
Author(s):  
Marțian Iovan
Keyword(s):  
Practical Implication ◽  
Ethical Principles ◽  
The Core ◽  
Basic Rights ◽  
The Law ◽  
Law Making

AbstractThis paper analyses the concepts of three great Romanian thinkers –theoreticians and philosophers of law – on the relations between law, morals and manners in order to discover, based on their idea filiation in the juridical Romanian culture, the differences of method and contents between them, to identify the practical implication in the field of performing the justice and law-making. Being trained and positioned in the core of the European juridical culture of their time, they reviewed the relations between law and morals, in a rationalist and humanist way, substantiating the need for the law to follow morals, the ethical principles both historically, and practically, the law-making being comprised as well. Thus, they leave room to the expression of human’s basic rights and freedoms in a democratic judicial order, while the rules of law subordinating the morals and manner proved to be widely open to totalitarianism.

scholarly journals A CONSTITUTIONAL DEMOCRACY SHOULD PROVIDE FOR THE LEGALISATION OF ORGAN TRADING

2018 ◽  
Author(s):  
Bianca ] Murray
Keyword(s):  
South Africa ◽  
Organ Procurement ◽  
Organ Transplant ◽  
Black Market ◽  
Organ Shortage ◽  
Organ Donors ◽  
Constitutional Democracy ◽  
Viable Option ◽  
South Africans ◽  
The Law

The choice before us is not between buying or not buying organs.1 This is happening regardless of the law. The choice is whether transplant operations and the sale of organs will be regulated or not.’2 It is in light of this statement that I propose a legalised system of organ trading. Desperate people will turn to the black market regardless of the law. If organ trading could be regulated, we can protect all parties involved and ensure that they get the benefit they deserve.3 A very important factor of this way of procuring organs is that it will curb the organ shortage organ shortage. The waiting period for an organ transplant in South Africa is 5-11 years. Approximately 50% of people die while being on a waiting list for an organ transplant.4 While there is such a dire need for organs, research has shown that only 0.2% of South Africans are organ donors.5 Something must be done to motivate more people to become organ donors. While the need for organs grows daily, the black market is flourishing. As none of the organ procurement systems in other countries are successful enough to provide the need for organs, our only viable option might be to implement a payment system. When closely regulated, the system of organ trading can be an enormous success.

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