Abstract
ABSTRACT This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to reconcile democracy and fundamental rights in case of conflict. The potential conflict between the two values is sometimes reflected in the relationship between Parliaments as the embodiment of democracy and the Constitutional Courts as the embodiments of fundamental rights (the so- called "counter-majoritarian dilemma"). However, the author rejects the recent critique by some scholars that the German Federal Constitutional Court structurally exceeds its powers vis-a-vis the German Parliament and that there is a permanent judicial overreach. On the contrary, the author argues that Constitutional Courts do not have sufficient tools to counter a democratic backsliding, i.e. the incremental erosion of democracy. Since the author considers democratic backsliding to be a greater and more acute threat to democracy than judicial overreach, he presents the view that the guarantee of the essential content of a right delineates the minimum of a fundamental right in a democratic society. This view is explained using freedom of expression as example. Keywords: German Constitution, Grundgesetz, Constitutional comparison, Essential content of a right, Freedom of expression, Separation of powers, Democratic backsliding, Counter-majoritarian dilemma, Constitutional courts, Democracy, Fundamental rights, Preconditions of democracy
Highlights
A study by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Institute for Statistics (UIS), indicates that 263 million children, adolescents and youth worldwide account for 1 out of every 5 children out of school
A closer look at statistics from South Africa indicates that the dropout rate for children at the primary level is higher than for those at secondary schools and tertiary institutions
This article set out to situate the declaration in relation to the context and content of the right to basic education
Summary
A study by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Institute for Statistics (UIS), indicates that 263 million children, adolescents and youth worldwide account for 1 out of every 5 children out of school. Further disaggregation of these figures indicates that at the primary level, 63 million children between the ages of 6 and 11 account for 9 per cent that do not go to school.. A closer look at statistics from South Africa indicates that the dropout rate for children at the primary level is higher than for those at secondary schools and tertiary institutions.2 In this regard, the dropout rate in 2010 stood at 30 per cent accounting for 1,090,765 of the 3,628,337 learners. On the basis of these statistics, this article deliberately concentrates on the right to basic
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