scholarly journals Practical implications for the electoral system: New Nation Movement NPC v President of the Republic of South Africa

2021 ◽  
Vol 138 (1) ◽  
pp. 58-87
Author(s):  
Loammi Wolf
Keyword(s):  
South Africa ◽  
Political Parties ◽  
Electoral System ◽  
Constitutional Court ◽  
Political Office ◽  
The Republic ◽  
New Nation ◽  
Registered Voters ◽  
Mixed Electoral System ◽  
Independent Candidates

In New Nation Movement NPC v President of the Republic of South Africa, the Constitutional Court declared parts of the Electoral Act 73 of 1998 unconstitutional in so far as the Act does not provide for independent candidates to stand for political office in the national and provincial legislatures. The court has given the National Assembly two years to redesign the electoral system. Given the constitutional and logistical constraints, the legislature will probably not be able to avoid a major electoral reform. It will be very hard to justify that voters may select a candidate of their choice only when such a candidate runs as an independent but not when a candidate elects to run on a party ticket. The best option would therefore be to introduce a mixed electoral system which combines constituency-based elections with proportional representation of political parties. To keep ballots manageable it would be appropriate to use other electoral design tools such as an entrance hurdle for political parties and deposits and/or nominations by registered voters supporting independent candidates as well. Such a reform might contribute to weed out candidates tainted by corruption because the capacity of political parties to shield them from the electorate in closed lists where the voters have no say about which candidates get elected will be constrained.

The Never-ending Story of Law and Electoral System in Lesotho

2018 ◽  
Vol 4 (1) ◽  
Author(s):  
Hoolo Nyane
Keyword(s):  
Political Parties ◽  
Prime Minister ◽  
Legal Discourse ◽  
Electoral System ◽  
Constitutional Democracy ◽  
Electoral Outcomes ◽  
Electoral Laws ◽  
Run Up ◽  
Mixed Electoral System ◽  
2012 Election

While electoral discontent has been the enduring feature of constitutional democracy in Lesotho since independence, disagreement over electoral system is a fairly recent phenomenon. When the country attained independence in 1966 from Britain, electoral system was not necessarily one of the topical issues of pre-independence constitutional negotiations. The major issues were the powers of the monarch, the office of prime minister, the command of the army and many more.  It was taken for granted that the country would use the British-based plurality electoral system.  This is the system which the country used until early 2000s when the electoral laws were reformed to anchor a new mixed electoral system.  When the new electoral laws were ultimately passed in 2001, the country transitioned from a plurality electoral system to a two-ballot mixed member proportional system. By this time, electoral system had acquired prominence in politico-legal discourse in Lesotho.  In the run-up to 2007 elections, bigger political parties orchestrated the manipulation of electoral laws which culminated in clearly distorted electoral outcomes. The manipulations motivated further reforms in the run-up to 2012 election which resulted in the single-ballot mixed member proportional system. The purpose of this paper is to critically evaluate how electoral laws have anchored electoral system reforms throughout the various historical epochs in Lesotho since independence. The paper contends that while the country has been courageous, unlike most of its peers, to introduce far-reaching electoral system changes, the reform of electoral laws has not been so helpful in attaining the higher objectives of political inclusivity, constitutionalism and stability in Lesotho.

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

scholarly journals Electoral incentives, policy compromise, and coalition durability: Japan's LDP–Komeito Government in a mixed electoral system

2018 ◽  
Vol 20 (1) ◽  
pp. 53-73 ◽  
Author(s):  
Adam P. Liff ◽  
Ko Maeda
Keyword(s):  
Political Parties ◽  
Security Policy ◽  
Democratic Party ◽  
Liberal Democratic Party ◽  
Electoral System ◽  
Japanese Politics ◽  
Electoral Incentives ◽  
Coalition Politics ◽  
Liberal Democratic ◽  
Mixed Electoral System

AbstractPolitical parties’ behavior in coalition formation is commonly explained by their policy-, vote-, and office-seeking incentives. From these perspectives, the 20-year partnership of Japan's ruling conservative Liberal Democratic Party (LDP) and its pacifistic Komeito junior coalition partner is an anomalous case. The longevity, closeness, and nature of their unlikely partnership challenges core assumptions in existing theories of coalition politics. LDP–Komeito cooperation has sustained for two decades despite vastly different support bases and ideological differences on fundamental policy issues. LDP leaders also show no signs of abandoning the much smaller Komeito despite enjoying a single-party majority. We argue that the remarkable durability of this puzzling partnership results primarily from the two parties’ electoral incentives and what has effectively become codependence under Japan's mixed electoral system. Our analysis also demonstrates that being in a coalition can induce significant policy compromises, even from a much larger senior partner. Beyond theoretical implications, these phenomena yield important real-world consequences for Japanese politics: especially, a far less dominant LDP than the party's Diet seat total suggests, and Komeito's remarkable ability to punch significantly above its weight and constrain its far larger senior partner, even on the latter's major national security policy priorities.

scholarly journals Kryzys konstytucyjny w Estonii w 2016 r.

2021 ◽  
Vol 21 (4) ◽  
pp. 65-81
Author(s):  
Grzegorz Zackiewicz ◽  
Keyword(s):  
Political Parties ◽  
21St Century ◽  
Presidential Election ◽  
Electoral System ◽  
Political Life ◽  
Electoral College ◽  
Political Crisis ◽  
Head Of State ◽  
The Republic

By law, the president of modern Estonia is elected indirectly by parliament or, in the absence of a decision in three consecutive votes, by a specially appointed electoral college. In 2016, Estonia experienced an unprecedented political crisis resulting from the impossibility of appointing the head of state according to the procedure specified in the constitution. It was determined both by more general factors related to the electoral system itself, as well as the specificity of Estonia's political life in the second decade of the 21st century. The 2016 presidential election proved to be a complicated game involving major political parties, going well beyond simply appointing a new head of state. The purpose of this article is to discuss the origins, course and immediate effects of these events, culminating in the unexpected election of Kersti Kaljulaid to the office of President of the Republic.

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

scholarly journals Implikasi Putusan Mahkamah Konstitusi Terhadap Pembubaran Partai Politik Di Indonesia

2018 ◽  
Vol 4 (2) ◽  
pp. 227-239
Author(s):  
Hasir Budiman Ritonga
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Legal Status ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Status ◽  
Party Members ◽  
The Republic

Judicial power in Indonesia under the 1945 Constitution of the Republic of Indonesia shall be exercised by the Supreme Court and the Constitutional Court. One of the authority of the Constitutional Court according to the 1945 Constitution of the Republic of Indonesia is to decide the dissolution of political parties. The facts in the current Indonesian system of ketatanegaran no cases of political parties that were dissolved through the decision of the Constitutional Court, it's just that the problem is when the Constitutional Court uses its authority to break the dissolution of political parties there are things that are formal juridically there is no clear rules, such as the legal status of party members who are not directly involved in the violation committed by the party and the status of party members who hold the position of members of the legislature both at the center and in the regions. So for that must be resolved by emphasizing the certainty, justice and benefit in the decision of the constitutional court

scholarly journals EVOLUTION OF THE PARTY SYSTEM OF THE REPUBLIC OF CYPRUS: FROM BIRTH TO STABILIZATION

2018 ◽  
pp. 16-22
Author(s):  
Nataliya Khoma
Keyword(s):  
Political Parties ◽  
Political System ◽  
Party System ◽  
Electoral System ◽  
Internal Conflict ◽  
The Political ◽  
The Republic ◽  
Republic Of Cyprus ◽  
The Eu

The process of the formation of the party system of Cyprus was considered. The period from colonial to 1981 is covered. The factors that influenced the evolution of the parties of Cyprus, in particular the internal conflict, were underlined. Emphasizes the importance of the ethnic component of the population of Cyprus. The attention was paid to the role of the Orthodox Church in shaping the political system of Cyprus. The article analyzes the norms of the Constitution of the Republic of Cyprus (1960) concerning political parties, in which the focus was on the parliamentary aspect of party activity. The role of Archbishop Makarios III, the first president of Cyprus, for the further evolution of the party system in the 1960–70s was revealed. Presented chronology of the appearance of the main parties of Cyprus and their participation in elections and coalitions. The article emphasizes that after the accession of Cyprus to the EU in 2004, the party system of the state is experiencing the trend of the newest European tendencies on the national party palette: the level of people’s confidence in the parties is decreasing, the party identity is blurred, the voter turnout is gradually decreasing, new types of parties are emerging, Radicalization is notable and so on. The party system of Cyprus is special, even if only within the EU there is a pro-communist party (Progressive Party of the Labor People of Cyprus), represented in the European Parliament, among the leading political forces. It was emphasized that the political parties of Cyprus until 1974 were purely electoral mechanisms. The new stage of development began with the stabilization of the post-colonial political system of Cyprus. At this time, the church lost its past influence, and the majoritarian electoral system alienated itself. This led to a new stage in the development of the party system in the late 1970s. It is noted that the determining factor was the transition to a proportional electoral system and the introduction of mandatory participation of voters in the vote. It was emphasized that these legislative innovations became important factors in the development of the modern party system of Cyprus. Since that time, the Cypriot parties have become more independent and united in the coalition.

scholarly journals El sistema electoral en Alemania a examen

2020 ◽  
pp. 479
Author(s):  
Yolanda Fernández Vivas
Keyword(s):  
Political Parties ◽  
Reference Model ◽  
Electoral System ◽  
Constitutional Court ◽  
Legal Reforms ◽  
Allocation Procedure ◽  
The World ◽  
El Sistema ◽  
Federal Constitutional ◽  
Seat Allocation

El trabajo que aquí presentamos es un análisis del sistema electoral alemán, que se caracteriza por ser un modelo de referencia en el mundo, al combinar elementos del sistema mayoritario y proporcional y en el que se presta especial atención al procedimiento de elaboración de candidaturas en el seno de los partidos políticos. Además, se analizan las últimas reformas efectuadas en el procedimiento de asignación de escaños y la labor desempeñada por el Tribunal Constitucional federal en la delimitación del sistema.This paper analyzes the German electoral system, which is characterized by being a reference model in the world, combining elements of both majority and proportional systems and in which the candidates` nomination within political parties is especially relevant. In addition, there is an analysis of the latest legal reforms that affected the seat allocation procedure and the influence of the Federal Constitutional Court in the delimitation of the whole system.

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