Constitutional Bill Research Articles

Perceptions of Policy Duty Bearers on the Inclusive Education Policy for Pregnant Teenagers in South Africa

Post-apa rtheid, South Africa democratised access to education as enshrined in the country's Constitutional Bill of Rights of 1996. This also includes making education accessible to pregnant teenagers as provided for by other post-apartheid legal provisions that prohibit discrimination in education. This study explored the perceptions of education policy duty bearers on the inclusion of pregnant learners in formal schools. The sample of the study comprised teachers, community representatives in school governing bodies (SGB), and parents of pregnant teenagers at two schools that mainstreamed pregnant learners. Data were analysed using Atlas ti computer package which was programmed to code and quote participants' views. Results of the study revealed that socio-cultural gender ideologies were the more influential variables on participants' negative perceptions towards the inclusion of pregnant learners in regular schools. From the findings, we recommend that comprehensive struc- tures and procedures for policy dialogue and advocacy be established in schools.

The nutrition transition and the human right to adequate food for adolescents in the Cape Town metropolitan area: Implications for nutrition policy

Changes in diet and nutrition, along with other lifestyle changes during the last decades, have affected the nutrition-related disease profile in many developing countries. This phenomenon, or process, is known as ‘The Nutrition Transition’. Several studies on adolescents in South Africa have shown that overweight and obesity are increasing, possibly due to this process. The aim of the present study was to extend our knowledge on the nutrition transition and the factors that influence adolescents’ choice of food in South Africa, and to develop policy recommendations that could facilitate the adolescents’ right to adequate food as laid down in the South African Constitutional Bill of Rights. The data were collected through focus groups with 25 female learners (grade 10, 14–16years) from urban public schools in Cape Town and key informant interviews with 10 school staff members. The most important nutritional concerns that emerged from the analyses, included skipping breakfast and the consumption of unhealthy tuck shop food. In terms of the human right to adequate food, these findings reflected lack of availability and access to adequate food within the household, at schools, and in the community. In addition, the study showed that there were no or few opportunities for physical activity for adolescents during and after school hours. Social factors, including social norms and a need to conform to peer group pressure, appeared to affect the behaviour of learners considerably. Traditional foods appeared to have lost their importance, while learners preferred to consume fast foods and to adopt a more westernised diet connected to affluence and social acceptance. Traditional and more “Western” body perceptions co-existed among the study participants. The nutrition transition in South Africa is of a complex nature because of large differences that exist amongst different ethnic and socioeconomic groups. Policy decisions should be based on an understanding of these diverse factors. The media and the food industry should be encouraged to work with government in influencing adolescents to make healthy food choices. Cultural perceptions which may lead to unhealthy choices and lifestyle need to be addressed while at the same time respecting people’s cultural pride and human dignity. It is recommended that human rights principles are used purposively in the future in policy formulations, interventions, evaluation and monitoring.

Navigating the “Unchartered” Waters of Victorian Mental Health Law Reform

With the Charter of Human Rights and Responsibilities Act 2006 (Vic) due for Parliamentary review by 1 October 2011, it is timely to reflect on its impact on Victorian mental health law between 2008 and 2011. From controversial origins, the Charter has been both praised and criticised. Based on the International Covenant for Civil and Political Rights, it protects 20 basic rights. Critics argue that the Charter is politically driven and is largely impotent because it creates no new remedies. Proponents see it as an important and symbolic first step in the eventual enactment of a Constitutional Bill of Rights. Nevertheless, in its current form, it has been used in a number of cases to promote the human rights of patients receiving involuntary treatment under the Mental Health Act 1986 (Vic) and has therefore created important jurisprudential commentary on the interplay between mental health and human rights law in Victoria. The Charter has also provided a much needed impetus to comprehensively review Victoria's out-dated Mental Health Act 1986 (Vic), with the aim of making it compatible with the rights enunciated in the Charter. In November 2010, Victorians elected a new Coalition Government which is less supportive of the Charter. As this article will demonstrate, while the future of the Charter may be uncertain, its legacy to date is not.

GST A New Tax Reforms in India- Implementing Towards Sustainable Development of the Economy

A developing economy like India necessities sufficient resources to finance the developmental activities that are comprehensively and achieves all levels of the society. Presently, the tax structure of Our country is very complex. To overcome these complexities of our taxation system, the government constantly changing the taxation system to rationalize tax administration and generate more revenues for social protection, infrastructure, and several other activities. That's the main reason, the government to implement or move towards the GST is an indicator of our evolved taxation system. After passing of the 101st Constitutional Amendment (GST) Act, the highly-anticipated tax products GST appears to be an actuality in 2017. To ensure a smooth transition, government and all related nodal agencies like Goods and Services Tax Council, GSTN etc., have been regularly making a decision to resolve the problems encountered being at different levels. To simplify the difficulties faced by indirect taxation system and create a common taxation system throughout the nation and decreasing the barriers between states, the dual structure Goods and Service Tax (GST) was passed by parliament. In 6th May 2015 at Lok Sabha and 12th May 2015 at Rajya Sabha passes constitutional amendment bill for GST and in 3rd August 2016 Rajya Sabha passes the constitutional GST bill by a two-thirds majority after more than a year. Now the government of India is committed to replacing the existing indirect taxation system levied on goods and service by both state and center and implemented by GST. It was formally launched by the President of India and Prime Minister of India at a formal function in the Central Hall of Parliament on 1st July 2017. GST will cover all the aspects of the existing indirect tax system like excise duties, customs duties, Local Body Tax (Entry Tax/Octroi), services tax, Sales tax/VAT etc. to reduce their tax burden and help the government in the uniformity, efficiency, and transparency of the taxation system in India and removal of cascading effect of taxation. This system has a uniform rate of tax for all the states. This paper is designed specifically to provide an in-depth knowledge of GST and what challenges the economy faces in implementing the GST at this time in a very practical and streamlined manner. The current study is an exploratory and descriptive research based on secondary data from different sources like GST Act, books, article, magazines etc.

PEMELIHARAAN DAN PELESTARIAN PENGETAHUAN TRADISIONAL DAN EKSPRESI BUDAYA TRADISIONAL INDONESIA: PERLINDUNGAN HAK KEKAYAAN INTELEKTUAL DAN NON-HAK KEKAYAAN INTELEKTUAL

Indonesian Maintenance and Preservation of traditional knowledge and traditional cultural expression or folklore (PTEBT) has forced to be done by government. PTEBT is cultural heritage that gave unreal treasure for Indonesia. This research focused on the problem in what obstacles might appear when Rancangan Undang-Undang PTEBT (PTEBT Constitution Bill) constituted which could reduce its effectiveness to protect Indonesian PTEBT as well as effort of solution that must be done by government to overcome those problems. This research was done by juridical sociological research method. This research has concluded that government planning to give protection through RUU Perlindungan dan Pemanfaatan Kekayaan Intelectual PTEBT (PTEBT Constitution Bill of Intellectual Wealth Protectionand Utilization). Intellectual PTEBT could not prevent the loss of Indonesian PTEBT. Besides, the maintenance and preservation of PTEBT must be done comprehensively that included the protection effort of Intellectual Property Rights (IPR) and non-IPR, law effort, and non-law.Key words : Traditional knowledge, traditional cultural expression, intellectual property rights

Panacea or Pathetic Fallacy? the Swiss Ban on Minarets

On November 29, 2009, Swiss voters adopted a ballot initiative introducing a constitutional ban on the construction of minarets. The supporters of the initiative had argued that minarets were not a religious symbol, but a token of power and conquest: banning them would halt the creeping Islamisation of Switzerland. The ban’s opponents had warned that the ballot initiative violated national and international provisions on non-discrimination and the free exercise of religion. This article provides a thick description of the context in which the minaret vote took place. First, a legal analysis addresses the implications of the ban under national, regional and international normative frameworks. It is argued that the ban is irreconcilable with the constitutional bill of rights and several international human right provisions. However, in contrast to state ballots in the United States, there is no judicial review of initiatives in Switzerland; respect for the vox populi trumps any concern over conflicting international obligations. A historical analysis will help to explain how, through its excessive emphasis on popular sovereignty, the peculiar myth-system underlying modern-time Switzerland has facilitated the banning of minarets. Mosques and minarets, however, also cause controversies elsewhere. The fears that fueled the prohibition of minarets in Switzerland are widespread in Europe. I set out how hostility to Islam is partly rooted in historical traditions, partly due to disagreement over how to integrate newcomers into Western society, and I suggest an approach that carefully balances expectations of Muslim adaption with a less exclusive construction of European identity.

Reform of the Wash-up: Managing the Legislative Tidal Wave at the End of a Parliament

In the few days between the calling of a general election and the dissolution of the Westminster Parliament, outstanding legislation is expedited through the Commons and Lords on the basis of deals made privately between the government and main opposition party. This process, known as the wash-up, has been criticised for restricting parliamentary scrutiny and marginalising backbenchers, crossbenchers and the other parties. While not a new phenomenon, it has received greater attention this year, with the passage of the wide-ranging Constitutional Reform and Governance Bill and the controversial Digital Economy Bill both attracting considerable concern and criticism. This article examines the political, legislative and constitutional questions raised by the wash-up process, assesses the adequacy of the measures utilised to offset them, and explores what reforms might be considered in the future.

Human rights and health go hand-in-hand. An interview with Savitri Goonesekere

Q: On 20 November 2009, it was 20th anniversary of United Nations Convention on Rights of Child (CRC). Sri Lanka is often cited as a model for its work in reducing child and maternal mortality and in improving literacy. How has CRC contributed to this? A: Sri Lanka has a good record of achievement with regard to children. In my country, have had visionary policies on health and education, meaning that every child has had right to go to school and right to basic health and that has been reflected in very good social indicators for even before CRC. In a sense, politicians had put in place through these policies but they weren't written into 1978 Constitution's Bill of Rights. Q: What changes followed CRC in Sri Lanka? A: Before convention, did not consider rights were necessary for all children, and child abuse was addressed only from point of view that they are children in difficult situations. The convention linked concept of good governance and state accountability. Giving access to health and education for all children, recognizing gaps in coverage and need to prevent disparities in health delivery are now state obligations. Protecting from abuse and exploitation must also receive high priority. The CRC is a powerful accountability measure for ensuring an effective public health system. Q: Is CRC really necessary for a country with sound laws and policies? A: Implementing all standards on child in CRC is not an easy task. An ideal situation does not prevail in any country, not even developed countries. Some argue that if the health policies are in place, why do need to put them in constitution and other laws? The reason is clear. Political systems are very fragile. All it takes is a change in a health minister. If someone comes in with a different attitude, everything can change. If a right is not in place in a law or constitution, it's very easy to pull it back. Q: Is there cynicism about what human can achieve? A: There is a cynicism about and what they can do, especially in developing countries. This just encourages states not to implement treaties they have signed. Human laws create a culture of support for implementing health policies by helping community to monitor state's actions and programmes. They can't get away with saying we can't help this situation. Even in a country such as ours, which has some fairly sound laws and policies on health systems and a fairly good administrative system for health delivery, there are gaps and weaknesses. Examples are regional variations in health and education services and child abuse. Q: You have completed an assessment of adolescents' of access to reproductive and sexual health information and services in Sri Lanka. What did you find? A: We found that Sri Lanka's focus on child protection has benefited in younger age group, but has largely neglected young people. The problem is that group adolescents as either or young people but their needs are quite specific. Adolescents' health problems are becoming more complex. Health providers need to acknowledge adolescents have a right to basic health services in some neglected areas such as reproductive health based on access to information and right of choice. Over years, problems have emerged including exploitation of children, particularly young girls who work in domestic service when they should be in school, sexual abuse of adolescents within family and in community. Teenage pregnancy is an emerging problem. Q: Sri Lanka has an exceptionally good record in region for its attempts to eliminate child marriages. Why do they still occur? A: Our laws and policies on access to education helped in implementation of minimum age laws. …

Constitutional basis of Austria’s accession to the European Union

On 1 January 1995 Austria became a member of the European Union. Austria’s accession to the EU constituted the most important transfer of jurisdiction in the history of the Federal Constitution. On this occasion the Austrian legislature passed an amendment to the Federal Constitution which provides for the participation of Austrian organs in the decision-making process of the European Union. The legal basis of Austria’s membership in the EU is the treaty on accession to the European Union and the special constitutional bill authorizing the competent authorities to ratify the treaty on accession. First of all, provisions on the election of Austrian members to the European Parliament were introduced by the amendment into the Constitution. Secondly, the amendment contains a procedure for participation of the Austrian lands and local governments in the decisions of the European Union. Thirdly, the legislative bodies on the central government level (National Council and Federal Council) are also accorded the right to participate in decision-making of the EU. Finally, a special provision confirming Austria’s participation in the Common Foreign and Security Policy of the Union was introduced.

Efficiency and Accountability in War Powers Reform

This article examines the UK government's Draft Detailed War Powers Resolution, recently put forward in its White Paper on the Constitutional Renewal Bill. Responding to calls for reform of the Crown's war prerogative, the Government has rejected primary legislation that would require parliamentary approval for its war-making decisions. Instead, the proposed resolution would preserve the prerogative, while purporting to give Parliament a greater consultative role. In critically assessing that proposal, this commentary takes a comparative look at how the US Constitution divides war powers between the President and Congress. Different interpretative schools in that country suggest that the structural distribution of war powers ultimately reflects competing preferences between values of operational efficiency and democratic accountability. Judged by these values, the British government's proposed resolution is seriously flawed. It heavily favours the executive branch by giving the Prime Minister the initial decision to seek authorization, allowing him or her excessive discretion in making exceptions, and offering little possibility for Parliament to make and enforce limitations on the government. Accordingly, the proposed resolution might actually undermine democratic accountability, by allowing the government to shield its prerogative decisions in future with a shallow and meaningless veneer of parliamentary approval. Any serious attempt to enhance the democratic accountability of executive war-making decisions must therefore address a more fundamental constitutional problem - the strict party system that allows ministers to control a parliamentary majority and prevent meaningful, independent legislative scrutiny of government war policy.

The Politics of Rights Protection in Western Democracies

This article examines two contentious rights debates – prisoner voting and gay marriage – in five Western democracies in order to assess the impact of different methods of rights protection. The five countries share similar political and legal histories, but two of them (the United States and Canada) have constitutional bills of rights, two (New Zealand and the United Kingdom) have legislative bills of rights, and one (Australia) has no national bill of rights. The article examines whether the existence of bills of rights has affected the outcome of debates on prisoner voting and gay marriage in the countries in question. The article concludes that, although, in general, the existence of a bill of rights has tended to correlate to the improved position of marginalised groups in these particular debates, that has not uniformly been the case. Moreover, even when bills of rights appear to have been relevant, their connection to the outcomes has not always been a linear one.

Waluchow on Moral Opinions and Moral Commitments

In the course of his argument for a common law conception of Constitutional Bills of Rights and judicial review, Wil Waluchow claims that there is a principled distinction to be drawn between a community’s ‘opinions’ or ‘mere moral preferences’ and its ‘true’ or ‘authentic’ moral commitments. More over, he argues that it is possible for judges to identify a community’s authentic moral commitments and apply them to decide particular cases. If he is right, it is not the case that judges, in making a decision about the application and scope of constitutional rights, are inevitably importing their own subjective moral standards into the decision. I analyze Waluchow’s use of the moral opinions –moral commitments distinction. I argue first that the distinction presupposes a descriptive methodology of constitutional interpretation. I suggest however, that the methodology of interpretation in Bills of Rights cases is constructive and involves substantive, ‘evaluative and justificatory’ reasoning by interpreters and judges. I then argue that the moral opinions-moral commitments distinction either can not do the work that Waluchow’s argument requires, or, if it is modified to do the work, it becomes a substantive distinction. A substantive conception of authenticity creates a problem for Waluchow because it undermines his purely procedural account of democratic self-governance.

Harmonized 'Goods and Service Tax' in India: A Backgrounder

The later half of the twentieth century has been witness to the transformation of the turnover and sales taxes to value added taxes (VAT). This trend which began in France in 1954 has been emulated with success in both the developed and developing countries and also at supra-national levels such as the EC-VAT. The assistance offered by IMF to a number of developing countries in designing and set-up their indirect tax structures on a VAT model has only reinvigorated this shift. India’s tryst with VAT is no different story. The shift to VAT from sales tax has so far done well, both for the States and industry on the counts of rising collections and smoothening of interface respectively. The positive feedback from this successful transition has not only aggravated the strength of the factors fuelling the reform drive but also accentuated the movement towards redefining of the indirect tax landscape on a broader scale in its quest for simplification and harmonization. The carvings for a comprehensive tax on goods and service are, however, not new. With the introduction of ‘Service Tax’ in 1994, cross-linking of the credit mechanism between taxes on goods and services became inevitable to avoid the fallouts of cascading effect and double taxation thereon. Though there has been a partial alignment on that front under the ‘CENVAT Credit Rules’, the existing rules are limited in scope as they cover only the duties of excise. The taxes on sale of goods being beyond their coverage and in the absence of a mechanism for availability of credit across different State taxes, the citizens not only end up paying tax on tax but also have to bear its inflationary ramifications. The intent of merge the major indirect taxes (State level VAT, excise duty and service tax) into a generic ‘Goods and Service Tax’ (GST) was expressed by the Government in 2006 and international commitments were also made. A lot of water has flown since the assertion of this intent – the Empowered Committee of State Finance Ministers has undertaken to design the GST Model with similar work also undertaken by the Finance Commission independently. To set the foundation for legislative functioning, a Constitutional Amendment Bill has also been introduced in the Parliament. In this backdrop the author has attempted to sketch the Indian indirect tax paradigm necessitating the transition and provide a basic framework for understanding the GST design. The underlying objective is collate the various issues and aspects facing the GST and thus this paper serves as a backgrounder to bring in context the current status of GST in India.

Diana Gordon. Transformation and Trouble: Crime, Justice, and Participation in Democratic South Africa. Ann Arbor: University of Michigan Press, 2006. xiii + 382 pp. Notes. Bibliography. Index. $75.00 Cloth. $27.95. Paper.

Diana Gordon. Transformation and Trouble: Crime, Justice, and Participation in Democratic South Africa. Ann Arbor: University of Michigan Press, 2006. xiii + 382 pp. Notes. Bibliography. Index. $75.00 Cloth. $27.95. Paper. This is a good book on an important subject. The issue of pandemic criminality is the common dark side of transitions to democracy. (One of the many virtues of the book-all too rare in discussions of South Africa-is its awareness of similar problems in other countries.) In all democracies the question of which responses will, on the one hand, reduce crime, and, on the other, ensure that the criminal justice system adequately addresses crime are complex. a society in which exaggerated hopes accompanied the apparent miracle of its transition from the horror of apartheid to the accomplishment of the human rights state, South Africa has had to face an efflorescence of ongoing criminal violence for which few were prepared. The new constitutional bill of rights contains extensive provisions to ensure that the oppressive policing and legal practices of apartheid criminal justice are repudiated. The landmark decision of the Constitutional Court declaring the death penalty unconstitutional set the tone for a completely new approach to a democratized criminal justice. New policing and new courts, both operating within a human rights framework, were envisaged. The weakest parts of the book are the two early chapters on pre-apartheid and apartheid justice, which deploy the customary narrative of racist evils; the title of chapter 3 (Bitter Fruit from Poison seeds) sums up the basic argument advanced. While Gordon flirts with the idea that data regarding crime increases are not reliable, and that increases may be due to increased reporting, she does conclude that crime is rampant-with women and children victimized in appalling numbers (93). Indeed, it is violence against persons that characterizes South African crime. Essentially the author attributes crime to the structural inequalities bequeathed by apartheid, and as these conditions persist she envisages no early change, despite thrilling democratization (95). There are also the connections between the violent political resistance to apartheid and its carryover into criminal violence. And she claims an analogy with child abuse: As abusing adults often reflect experience as abused children, those who are violent in South Africa have lived in the shadow of an abusive regime, even if they have not experienced its violence directly and physically (100). …

Legislative Gender Quotas and Indian Exceptionalism: The Travails of the Women's Reservation Bill

In 1996 the Indian government introduced the Constitution (8 1st Amendment) Bill. This bill proposed that 33 percent of seats in the Lok Sabha (national parliament) and in state-level assemblies be reserved for women. In those constituencies, all contesting political parties would only run women candidates. After inconclusive debate, it was referred to a joint select committee, one-third of whose members were women MPs. The committee reported at the end of the year.' Faced with obvious manifestations of opposition, the government decided not to proceed to a vote. Reintroduced by the next government, led by the Bharatiya Janata Party (BJP) as the 84th Amendment Bill in July 1998, it provoked a stormy session in the house, featuring unprecedented scenes of snatching of papers from the Speaker and the law minister and the virtual coming to blows of members....2 Discussion of the bill stalled without ever going to an initial vote. Presented next (as the 85th Amendment Bill) in December 2000, in a virtual replay of earlier scenes particular party leaders trooped into the well of the chamber. When introduced one further time in May 2003:

Journalism Worthy of the Name: An Affirmative Reading of Article 10 of the ECHR

In an era of globalisation the significance of large media conglomerates in shaping public opinion gets ever more real. The author argues that it is no longer realistic to assert that the best press law is no law at all. The traditional criteria of hands off policy with regard to the media is obsolete not only in light of increased concentration of media power but also with an affirmative reading of Article 10 of the European Convention on Human Rights and the democratic significance of the press as the public watchdog. Legal regulation may be the only safeguard left to counter the market control of the media – more often than not supported by political interests. Supra-national institutions like the Council of Europe and the European Court of Human Rights may be the only forces available to counter the growing impact of big corporations potentially crushing fundamental rights in a parallel manner as many governments were suspected of when the European Convention on Human Rights was designed as a collective safeguard against abuse of power by authorities. The Convention did not put an end to pressures on media freedom. While it has developed into a constitutional bill of rights for the now 45 member States of the Council of Europe its relevance is of no less importance in the well-established original member States as in the newer ones. Journalists are not only threatened by shameless rulers but also by tough corporate elites who have the same objective as their forerunners who were elected – to use the media for their own agenda. An affirmative reading of Article 10 providing the argument for legislation, to guarantee freedom within the press, requires a separate theory and justification.

La Parité en débat au-delà de Versailles

Referring mainly to texts published after the passage of the constitutional bill on gender parity in politics, this article asks theoretical questions about how French intellectuals understand the issue of 'women and politics'. It raises questions about 'differentialism' and 'discrimination', two notions that keep recurring in critiques of parity. By continuously emphasising the differentialism of parity advocates, 'republican feminists' may end up reinforcing and popularising this notion. Furthermore, parity critics' constant references to 'discrimination' may (intentionally or not) encourage the view that women are just another 'minority'. Do these two mutally reinforcing developments point to a 'socialisation of politics'? Is such a trend unavoidable when thinking about the links between 'women' and 'politics'?

Les élites parlementaires françaises et la parité: Sur l'evolution d'une idée

This article analyses French parliamentary elites' perceptions of gender parity in politics. In particular, it examines the debates that took place in the National Assembly and the Senate between 17 June 1998 and 28 June 1999 with regard to the constitutional bill on women and men's equal access to elected office. These debates, which primarily sought to determine whether to modify article 3 or 4 of the Constitution, highlight the main preoccupations of proponents and opponents of parity, notably: popular sovereignty, republican universalism versus communitarianism , the modernisation of political life, equality between female and male citizens, and, finally, the role of parties in representation and the selection of elites. In the conclusion, questions are raised about representative democracy and, above all, women's role in political representation.

Gender, Class, and Caste Schisms in Affirmative Action Policies: The Curious Case of India's Women's Reservation Bill

Following the introduction of economic liberalization policies in 1991, India has registered steady gains in terms of conventional economic indices such as external trade, investment inflows, and foreign exchange reserves. However, globalization has also caused the feminization of poverty. To counter this trend of marginalization of women, it is necessary to address the gender imbalance in decision-making positions. A Constitutional Amendment Bill seeking 33 percent reservation for women in parliament and state legislatures has, however, been scuttled by three successive governments since 1996, even while each party swears by its commitment to gender equity. The reasons for this curious schism showcase a classic example of gender-class-caste alignments and divisions, under political compulsions. This paper examines this ongoing gender-caste-class imbroglio, in the context of Indian affirmative action policies (economic, social, political), which have generated "backlash" reactions.

Legislative Imposition of Minimum Staffing

Legislative Imposition of Minimum Staffing