Suchergebnisse

This contribution is a review of the research handbook in comparative constitutional law, titled Comparative Constitutional Theory edited by Gary Jacobsohn and Miguel Schor. It was published in 2018 by Edward Elgar Publishing. Every law library worthy of the name should acquire it for the benefit of constitutional scholars and advanced students of constitutional comparison.

The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts. This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms. Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism. While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern.

The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts. This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms. Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism. While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern.

This edition, one of the most voluminous to date, opens with an oratio by IT Cohen Professor of International Law and Human Rights, Emory University School of Law, Johan van der Vyver.The paper was delivered in the HL Swanepoel series of lectures on 26 May in Potchefstroom.In a well documented paper covering historical perspectives on the right to self-determination, the definition thereof and limitations thereupon, Van der Vyver concludes that the "[d]rafters of the South African Constitution rejected segregation of rival ethnic, religious and linguistic communities, as well as the promotion of cultural, religious or linguistic homogeneity within our nation, as a means of counteracting group-related tensions in the country's social construct. . . . The new constitutional dispensation accordingly seeks to promote pride in one's group identities."He also points out that "[p]luralism, tolerance and broadmindedness have been singled out by the European Court of Human Rights as indispensable components of a democratic society."A link to video material of the lecture is also included.

While constitutional comparatists may be talking the same language while saying (or thinking) different things, the significance of constitutional communication and more importantly of comparative endeavours may suffer seriously under unarticulated conceptual confusion. It has become important, if not essential in this era of escalating trans-nationalism, globalisation and comparativism, to confront the reality of the variance of meaning hidden under identical or homonymic constitutional terminology. Avoidance of this issue quietly begets confusion in the ever-increasing international and domestic legal discourse. The success of liberal theory in establishing the terminological standard for constitutional language is addressed before the conceptual foundations of the popular phrase 'we, the people', the social contract, the state, democracy, sovereignty, the rule of law and constitutional review jurisdiction are briefly probed. With reference to certain paradoxes in constitutional thinking and explanations for entrusting authority to the state, the epistemological challenges facing constitutional comparatists are addressed, followed by a suggestion for finding a measure of relief from the conceptual confusion by means of a comparative instrument. Identification of the terminological difficulties reveals the need for renewed investigation into a range of fundamental issues, explicitly approached from divergent points of departure.

This issue contains various contributions on the themes of traditional African culture, the law relating to children and juveniles, the state's social responsibilities, labour law and one on legal education. In August 2011 Advocate Joyce Maluleke, Director in the Gender Directorate of the South African Department of Justice and Constitutional Development addressed the Annual General Conference of the South African Chapter of the International Association of Women Judges held in Potchefstroom on the dangers of harmful traditional practices such as early and forced marriages, virginity testing, widow's rituals, levirate and sororate unions, female genital mutilation, breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting. Although she considers respect for tradition, culture and customs to be part of the South African identity, she argues that cultural practices should be rooted in respect for human rights, democracy and equality. We publish her paper here as an oratio.

This issue deals with a selection of topics of environmental law. As it should be clear from the short tribute written by Margaret Beukes, the issue is devoted to Professor Elmien Bray, for many years a force in the emergence of South African environmental law. Jonathan Verschuuren of Tilburg University expertly comments on the Dutch Crisis and Recovery Act, showing clearly why it is such a controversial piece of legislation: balancing economic recovery with sustainable development, sound principles of law, justice and crisis management is shown to be a very hard result to achieve by means of legislation.

We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007. In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them." He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication. Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication."