scholarly journals Constitution-making: The round table model, popular participation & constituent assemblies

2021 ◽  
Author(s):  
◽  
Thomas Joseph Bailey Buchanan
Keyword(s):  
South African ◽  
Round Table ◽  
Dominant Group ◽  
Constituent Power ◽  
Popular Participation ◽  
Preferable Alternative ◽  
Table Model ◽  
South African Constitution ◽  
The Ideal ◽  
Constitution Making

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>

scholarly journals Constitution-making: The round table model, popular participation & constituent assemblies

2021 ◽  
Author(s):  
◽  
Thomas Joseph Bailey Buchanan
Keyword(s):  
South African ◽  
Round Table ◽  
Dominant Group ◽  
Constituent Power ◽  
Popular Participation ◽  
Preferable Alternative ◽  
Table Model ◽  
South African Constitution ◽  
The Ideal ◽  
Constitution Making

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>

Participatory constitution-making: Introduction

2020 ◽  
Vol 18 (1) ◽  
pp. 173-178
Author(s):  
Sujit Choudhry ◽  
Mark Tushnet
Keyword(s):  
Political Legitimacy ◽  
Popular Sovereignty ◽  
Third Wave ◽  
Constituent Power ◽  
Popular Participation ◽  
The People ◽  
The Will ◽  
Hypothetical Consent ◽  
Elected Representatives ◽  
Constitution Making

Abstract At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

Constituent Power

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
Political Order ◽  
Political Agency ◽  
Constituent Power ◽  
Constitution Making ◽  
The Revolution

This chapter argues that scholarly debates about constituent power presuppose a distinction between constituent power and constitutional form that is neither theoretically compelling nor practically illuminating. In contrast to constitutionalists, it argues that constituent power is inexhaustible, the revolution not being reducible to an event and thus constitution-making fails to terminate constituent power. In contrast to populists, it argues that constituent power does not operate in a constitutional vacuum because the judiciary imposes constitutional continuity through unwritten constitutional principles. The judiciary also polices will formation during revolutionary upheaval, as reflected in Egyptian and Tunisian judicial rulings and legal debates relating to the formation and functioning of constituent assemblies. Finally, the overlap between constitutive and legislative functions in the practice of constituent assemblies, and the deflation of the constituent power’s political agency are inconsistent with theories that present constituent power as an unbounded political agency that establishes a new political order.

scholarly journals THE RIGHT TO MOTHER-TONGUE EDUCATION: PRACTICABLE OR NOT?

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
Chrizell Chürr
Keyword(s):  
South African ◽  
Basic Education ◽  
Mother Tongue ◽  
Cumulative Effect ◽  
The South ◽  
National Education ◽  
Mother Tongue Education ◽  
South African Constitution ◽  
The Right ◽  
South African Schools Act

Mother-tongue and mother-tongue education are recognized worldwide as one of the most efficient ways to function cognitively and socially. This article addresses the role of proper mother-tongue education with an emphasis on the importance of “language” since language is vital to a child’s right to a basic education in all its dimensions. Without mother-tongue education, every child’s right to learn and to become a skilful adult, able to participate independently in society, is at risk. The cumulative effect of the South African Constitution, the National Education Policy Act, the South African Schools Act, several international instruments and a number of ground-breaking cases, as well as the interaction between them on mother-tongue education will be examined. The implementation of certain education models will also be proposed.

scholarly journals The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma

2017 ◽  
Vol 17 (3) ◽  
pp. 1069
Author(s):  
Vinesh Basdeo
Keyword(s):  
Human Rights ◽  
South African ◽  
Justice System ◽  
Organised Crime ◽  
Primary Objective ◽  
The South ◽  
European Court ◽  
Proceeds Of Crime ◽  
Asset Forfeiture ◽  
South African Constitution

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals.[1] The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution.[2] This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications? 

scholarly journals Socio-economic rights and women in South Africa: nothing but a handful of feathers?

2011 ◽  
Vol 7 (1) ◽  
Author(s):  
M K Ingle
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Political Science ◽  
South African ◽  
Gender Studies ◽  
The State ◽  
Development Studies ◽  
Bill Of Rights ◽  
Economic Rights ◽  
South African Constitution

The Bill of Rights contained within South Africa’s Constitution features a number of ‘socio- economic rights’. Although these rights are justiciable they are subject to various limitations. They generally entail a positive onus on the part of the state to provide some good – not immediately, but ‘progressively’. Women have a direct interest in the realization of these rights and, where given effect to, they should exert a positive developmental impact. Some authorities are, however, of the opinion that socio-economic rights are not really enforceable. This article contends that the provision of social goods, by the state, should be the concomitant of the disciplined implementation of policy. Delivery should not therefore be contingent upon the legalistic vagaries of the human rights environment.Keywords: Socio-economic rights; justiciability; Bill of Rights; development; South African Constitution; womenDisciplines: Development Studies;Human Rights; Gender Studies; Political Science

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