Twenty-seven years after the adoption of the Constitution Act, 1982, the Constitution of Canada is still not officially bilingual in its entirety. A new translation of the unilingual English texts was presented to the federal government by the Minister of Justice nearly twenty years ago, in 1990. These new French versions are the fruits of the labour of the French Constitutional Drafting Committee, which had been entrusted by the Minister with the translation of the texts listed in the Schedule to the Constitution Act, 1982 which are official in English only. These versions were never formally adopted. Among these new translations is that of the founding text of the Canadian federation, the Constitution Act, 1867. A look at this translation shows that the Committee chose to depart from the textual tradition represented by the previous French versions of this text. Indeed, the Committee largely privileged the drafting of a text with a modern, clear, and concise style over faithfulness to the previous translations or even to the source text. This translation choice has important consequences. The text produced by the Committee is open to two criticisms which a greater respect for the prior versions could have avoided. First, the new French text cannot claim the historical legitimacy of the English text, given their all-too-dissimilar origins. Its adoption through a constitutional amendment will not grant it the requisite legitimacy, as the nature of such an amendment is generally misunderstood by lawyers, let alone the ordinary citizen. In addition, the new text is, in many instances, anachronistic, as a result both of the purism and the modernism of the Committee. This desire to erase the “mistakes” of our ancestors, to “refrancize” the language of the era, leads to the drafting of a text which is entirely divorced from its original context, a text which cannot be a true reflection of the historical source text. This necessarily results in a lack of historical accuracy in the new translation. These two problems might have been avoided by giving greater weight to the translations of the past. In the current circumstances, the unreflecting adoption of the new text would have unfortunate effects for the understanding of our constitutional law and its history. / Thesis (Master, Law) -- Queen's University, 2009-10-06 18:32:47.602

Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africaâs open and democratic society. The Court acknowledged ubuntu as part of South Africaâs jurisprudence and fused Western and African jurisprudence into a new South African ârainbowâ jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a ânew racismâ which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the âDark Continentâ. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africaâs crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the âcultural bombâ, which eroded African values. The publication of Templeâs Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the âsum total of African valuesâ; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africaâs closed, strong communitarian societies unique and not universal, but ubuntu âmoral philosophyâ proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntuâs eroded traditional African values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor âthe Constitution in general and the Bill of Rights in particularâ.

South Africa has an extensive heterogeneous population where drastic and far-reaching differences regarding community values and acceptability norms exist. These are emphasised by the serious imbalances regarding socio-economic circumstances. The late establishment of a democracy in South Africa was preceded by a traumatic period of intense suffering among a large section of the population. One great advantage of South Africa becoming a democracy at such a late stage is the fact that the country could learn from the political and constitutional successes and failures of other countries. This aided the establishment of a new order to ensure justice and stability for all South Africans. The final Constitution was developed after five years of intense negotiations. To address imbalances of the past, the Legislator deemed it necessary to write the concept administrative justice into Section 33 of the Constitution. This is currently a fundamental human right which is a right every citizen is entitled to. The concept administrative justice contained in Section 33 of the Constitution and its concretisation in the Promotion of Administrative Justice Act are certainly not perfect in all respects, but, in spite of this, is a significant effort on the part of the Legislator to create a basis for peace, justice, political tolerance and prosperity in South Africa. The foundation was built according to a concept of administrative justice which can develop further. In this thesis the constitutional embodiment of administrative justice is analysed through various approaches. A critical analysis is made with specific reference to case law as well as legislation. The emphasis is placed on the review aspects as mentioned in the Promotion of Administrative Justice Act, and developmental aspects of the concept will be investigated further. Attention is paid to the history preceding the current concept of justice. This will reveal both the essence and the problems surrounding this concept that has been around for years. A closer investigation of the practical application and influence of administrative justice on the private law fields, more specifically, the law of delict and contractual law will shed further light on the concept of justice. The concept administrative justice does not only belong to the state-subject relationship, i.e. vertical application of understanding, but also has an impact on the relationships of the private individual or institutions â the so-called horizontal application. The embodiment of the concept administrative justice in legislation caused a drastic change in the approach of the courts to the application of justice. The application of the courts of legislation, such as the "ouster clauses", and the disadvantage it has for the individual now belongs to the past. The focus of this thesis falls on key elements pertaining to the concept of justice, namely, lawfulness, reasonableness and procedural equity. However, there is much cause for concern of state institutions and different bodies being excluded in the definition of administrative action in the Promotion of Administrative Justice Act. It has the potential to become a powerful barrier in the future development of administrative justice. It is clear that all administrative action should firstly be tested to the definition before concentrating on its different review grounds. The definition of an administrative action is compiled from three different definitions and is, as such, interpreted with difficulty by the general civil servant in his/her daily action in the workplace. A further development of the above-mentioned act and the provision of a guideline, such as the Code of Good Conduct and the implementation of courts specialising in administrative law, will be welcomed to help further establish and develop the concept administrative justice. In essence, this thesis attempts to critically analyse the concept administrative justice in Section 33 of the Constitution with specific reference in its concretisation in the Promotion of Administrative Justice Act.

Since its independence in 1991, Eritrea has seen egregious violations of human rights and humanitarian law. This study examines the perpetration of international crimes in Eritrea between 24 May 1991 and 30 May 2008. A factual and legal analysis of the major incidents and events that took place during the above period of time reveals that crimes against humanity, war crimes and crimes of aggression have been perpetrated in Eritrea in an alarming manner affecting hundreds of thousands of people. In most cases, human rights violations have been perpetrated under a clear and premeditated government plan of persecution and repression of political dissent and certain religious convictions. Although some of the incidents discussed in this work appear to be sporadic events occurring only in a specified time and with a specific objective, most of the violations portray a clear, coherent, systematic and comprehensive government policy of repression. The widespread and systematic violation of human rights in Eritrea constitutes crimes against humanity as defined by the relevant provisions of international law. There are also violations perpetrated in the context of the 1996 Eritrea-Yemen border conflict, the 1998-2000 Eritrea-Ethiopia border conflict, as well as other incidents of internal and international armed conflicts. These cases portray categories of crimes perpetrated with political motive of a cross-country nature. It is concluded that a certain group of highranking government officials can be tentatively identified as the most responsible perpetrators and accordingly they bear individual criminal responsibility for serious violations of international law since 1991. To end the culture of impunity, this study proposes that international criminal justice, administered by the International Criminal Court, foreign municipal courts, or national or mixed tribunals, should be instituted. However, in the event of a negotiated and peaceful political transition, conditional amnesty administered by a democratically constituted truth and reconciliation commission is also regarded as an acceptable option.

This thesis is primarily concerned with the legal status of the unborn in international law. It investigates the lack of jurisprudence concerning the legal status of the unborn in this area of law and contends that such a lacuna is unacceptable. The unacceptability of this lack of discourse is highlighted in light of the concept of rationality; and rationality is presented as the best alternative method to deal with the legal status of the unborn, based on various justifications showing that the current method of legal discourse is not only devoid of rationality but inadequate to deal with this problem. Rational procedural and substantive attempts are then promoted to advance the legal status of the unborn in international law. Here the thesis emphasises the importance of taking into account requirements of humanity, sensitivity to animals and fairness, and continues to investigate the irrationality of abortion jurisprudence by arguing that the sole use of human rights and more specifically, the right to life and womenâs rights, as determining the legal status of the unborn is part of the problem. Rationality requires an inclusive and sensitive approach and therefore, the sole use of concepts such as human rights, to the exclusion of science, anthropology, humanity and international justice, amongst others, are argued to be irrational. Scientific and anthropological consideration is also very important, not only to present an inclusive approach, but because these disciplines present us with some of the few convincing facts that can be used to aid philosophers when dealing with a topic where assumption and argument, rather than facts, are ample. However, this thesis does not pretend that a final or absolute solution on the legal status of the unborn is possible as cultural and ethical relativism as well as ideological affiliations present a problem to obtaining a universal rational outcome on the legal status of the unborn. However, it is stated that the possibility of a universal rational outcome, which represents an improvement on the contemporary situation, does exist and therefore, it would be irrational if such possibility were not attempted on rational grounds by way of procedure and substance, taking into account requirements of humanity.

Societas According to Rosmini, society is not a man-made entity or creation, but rather a theistic institution, since it originates from the will of God. Accordingly, human society is founded in the order of Godâs Creation. The freedom of the form of human society is realised in a variety of differentiated social forms, namely civil societas, domestic societas and ecclesiastical societas. Rosmini states that social forms are not reducable to simply civil societas, but include human social togetherness. Neither can one social form derive authority from the next. Unlike Thomas Aquinas who models the principles subsidiarity on the principles of hierarchy, autonomy and intervention, Rosmini emphasises the independence of each social form and in doing so he achieves a well-rounded doctrine of human society and social forms. He is of the opinion that the various social forms are closely bound, which means that a human society cannot be discussed without taking domestic societas, ecclesiastical societas and civil societas into account. Each social form forms part of an independent freedom and fulfils a responsibility before God. Rosmini endorses the Thomistic subsidiary principle to the extent that civil societas merely lends assistance and support to, for instance, domestic societas, should the latter community be unable to preserve its interests. On this basis, civil societas may not interfere with the interests of the other two forms. According to Rosmini, every society has a moral substructure which serves as a basis for the rights and obligations necessary for the maintenance of natural law. Social justice is expressed in society by means of the principles of goodwill. Rosmini relates to classical viewpoints where societies are bound to the fundamental moral principles of the central commandment of love, since all human rights are based on fundamental duty. On these grounds, Rosmini presents a platform for cultural discourse and ethical involvement across ideological boundaries insomuch as he is of the opinion that society as a whole stands beneath the general revelation of God. Natural law In Rosminiâs explicit stance on natural law he maintains a primarily Thomistic opinion which originates from his perspective of Divine Providence. Natural law is a manifestation of practical rationality. For example, to come to the knowledge of human rights, human nature and reasoning must be used as guidelines. As such, Rosmini upholds a paradigmatic perspective of natural law where there is a close correlation between natural law and the maintenance of justice in human society. Natural law and justice culminate in the relationship between rights and duties. Rosmini holds that natural law and justice are built upon the maintenance of important moral duties. On this basis, moral values have significant constitutional implications which give expression to the universal principle of love. In this way, natural law forms the foundation of human rights. Human Rights Rosminiâs point of view regarding human rights rests principally on his natural jurisprudence. His focus on justice in human society supports his standpoint on human rights, the jurisprudence of which originates from the Scriptural principle of love towards God and oneâs neighbour. On this basis, Rosminiâs stance regarding human rights is closely linked to his theocentric idea of manâs personal relationship with God. His human rights teachings embrace both individual and social rights, the latter being reflected in social, ecclesiastical and domestic societas. Rosmini holds that social justice can only be ensured by the balanced maintenance of all natural rights on both individual and social levels. He is of the opinion that the natural rights of individuals in social entities originate most deeply in the human cry to God. Accordingly, Rosminiâs human rights teachings can be illustrated by his points of view regarding human dignity.

ABSTRACT This thesis primarily concerns the constitutional theory postulated by the 17th-century reformed Scottish theologian and political theorist, Samuel Rutherford. In this regard the angle of approach is done against the setting of the political and constitutional concepts arising from theologico-political federalism formulated by the federalists � Heinrich Bullinger, Philippe DuPlessis-Mornay and Johannes Althusius. Included among these concepts are: the law � its content and status, the separation of powers principle, the office of magistracy, the civil and religious duties of the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and active resistance to tyranny. In addition, theologico-political federalism entails in essence the idea of the biblical covenant, which concerns the biblically confirmed bilateral, mutual and conditional relationship between God and the Christian Community, as well as the political covenant between government and the governed within such a community. It was especially the relevance of the Divine law (summed up in piety and civility) as condition of the covenant that was emphasised by the federalists, and which gave a unique meaning to the concept of sovereignty as branch of the primary and absolute holder of sovereignty, namely God. It was to be from this basis that the content of the separation of powers principle, the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and resistance to tyranny, were to be determined and given perspective. This thesis not only confirms that Rutherford and the mentioned federalists had much in common regarding political and constitutional content, but also and more specifically, that Rutherford�s view on the biblical covenant and the law as foundation of politics and constitutionality was similar to those of the federalists. It is also confirmed that theologico-political federalism rates among one of the most valuable and insightful formulations emanating from reformed constitutional thought in general. Theologico-political federalism, although not the only stream of thought to be applauded for its contribution to Western constitutional theory in the 16th and 17th centuries, contributed much to such theory. Amidst the development of secular constitutional theory during the period of the Reformation, the federalists provided a model of how the constitutional dispensation of the Christian Community should be structured, and as point of departure, political society�s status as a party to the covenant with God was postulated, this covenant relationship acting as the fundamental framework for political content and activity � albeit within the absolute grace and predestination of God. The personal relationship between God and the political community as not only an effective constitutional model, but also a biblically qualified and practical constitutional theory was proposed by the federalists. It will also be confirmed that not only did the federalists provide a well researched constitutional model to be applied to the ideal Christian Community, but also assisted in championing constitutional values such as liberty, equality, the rule of law, limited governance, and democracy. In conclusion, may it be said that it can be deduced from this thesis that Rutherford�s participation in the continuation and development of the legacy of theologico-political federalism was substantial, and consequently it is hoped that his already-respected contribution to reformed constitutional theory is duly enriched.

The purpose of the Basic Conditions of Employment Act is to advance economic development and social justice by fulfilling the primary objects of the Act which are to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution, and to comply with obligations incurred by the Republic as a member state of the International Labour Organisation. Section 9(1) read with section 10(1) of the Act has the effect that employees covered by the sections are not allowed to work for the same employer for more than 55 hours per week. This does not prevent employees from working longer hours in total in terms of employment agreements with different employers, an option that entails certain disadvantages. The study investigates the constitutionality of the limitation of the opportunity to work for longer hours for the same employer. Reference to comparative law focuses on the legal position in America, Germany and Canada. Throughout the study the notion that work involves more than a trade agreement in terms of which labour is sold, is a basic theme. Constitutional perspectives on the concepts human dignity and freedom, with reference to freedom of the person as well as freedom of contract, are discussed. A direct relationship between work and employment, and the development of personality and human dignity, is indicated. The discussion leads to a conclusion that the relevant articles limit the rights to human dignity and freedom of the person, including freedom of contract, of the employees concerned. Human dignity is also discussed within the context of the entrenchment of socioeconomic rights. The relevant provisions are substantively assessed in terms of the reasonableness standard set by the Constitution. The conclusion is reached that the provisions cannot be accounted for on this basis. A third fundamental constitutional principle, equality, is considered. A substantive assessment in terms of the applicable test established in Harksen v Lane NO reveals that the provisions have the effect of reinforcing the disadvantaged position, owing to past discrimination, of black people and women with regard to job opportunities, which supports a conclusion that the relevant provisions constitute indirect unfair discrimination based on race, gender and socio-economic status. It furthermore appears that, although the provisions pass the rationality test that applies to provisions that regulate trade, occupation or profession, the fact that the regulating effect of the provisions violates fundamental constitutional rights, constitutes a violation of the right to freedom of trade, occupation or profession, protected by section 22 of the Constitution. The study also focuses on section 23(1) of the Constitution that determines that everyone has a right to fair labour practices, as well as on section 23(5) that confers a right to engage in collective bargaining. It appears that the provisions have a negative effect as far as work security is concerned, and therefore are unfair. The position with regard to section 23(5) is that the bargaining options of union members and employers are limited by the determination of minimum standards. The study concludes with an application of the section 36 test for the justification of limitations of constitutional rights. The adverse effects and the objects of the relevant provisions, taking into account the extent to which the provisions effectively promote the objects, are weighed up proportionally. Less restrictive means by which the objects can be promoted, are discussed. A conclusion is reached that the infringement of the constitutional rights of employees who are adversely affected by the relevant provisions, cannot be justified.

International humanitarian law (IHL) strives to improve and protect human dignity during the most tumultuous periods known to mankind. As such, every endeavour to strengthen and enhance the functioning of this branch of law must be pursued and supported. The ICRC Study on Customary International Humanitarian Law (CIHL) was precisely such an endeavour. This Study found that very many IHL rules have been subsumed by CIHL, thus applying irrespective of treaty ratification, and that the rules applicable in international armed conflicts were converging with those applicable in non-international armed conflicts. However, this Study and its attendant literature have refrained from returning to a theoretical reconsideration of the normative foundation of IHL and, by extension, CIHL. The present dissertation aims to fill this theoretical lacuna and, in the process, to re-establish natural law principles and, in particular, considerations of humanity, as the raison d'être of and motivating factor for IHL. Accordingly, the dissertation pursues the natural law principle of humanity through its practical and theoretical development, before investigating its possible application through the Martens clause, norms of ius cogens and obligations erga omnes. Since the objective is to elucidate the essential foundation of IHL to better comprehend its customary source, the interconnectedness between IHL, CIHL and natural law principles, like humanity, is emphasised. In the process, the dissertation also enters the debate regarding the necessary methodological approach for CIHL ascertainment and postulates a normative, transcendental approach in this regard. Subsequently, the ICRC Study on CIHL is evaluated through the natural law paradigm established in the dissertation, which seemingly has not yet occurred in international legal literature.

The negative impact of the apartheid regimeâs policies on the social, political and economic conditions of the majority of the population is well established and persists into the present day South Africa. The South African Constitution acknowledges this negative legacy, but also contains a vision of the type of society it envisages for South Africa. The inclusion of values, principles and rights on which this new society is based does not, by virtue of its design, erase all the consequences of the previous discriminatory policies. Simply removing discriminatory legislation and practices cannot alleviate the injustice and poverty that resulted from 40 years of oppressive legislation and government policies. Implicit in this constitutional vision are remedial and restitutionary measures for the achievement of the constitutional goal of a free, prosperous and egalitarian South African society. Illustrative of this fundamental commitment, several constitutional provisions, directly or indirectly, sanction remedial measures to address remaining injustices. Different types of remedial measures are envisaged, namely affirmative action programmes, a government policy of preferential procurement, and Black Economic Empowerment. The constitutional imperative for policy tools to transform the South African economy in particular, by means of black economic empowerment is therefore clear. In this study the legacy of apartheid, with specific reference to the economic aspect thereof, is researched. From this it becomes clear that transformation in the way economic resources are divided is necessary. The enactment of specific legislation dealing with the subject resulted from the recognition of the need for regulatory intervention to give momentum to the process of reform. The B-BBEE Act and its Codes of Good Practice provide the foundation for the drafting and implementing of the BBBEE programme. The B-BBEE programmeâs operation is analysed in order to draw conclusions on the constitutionality thereof. Within the framework of the Constitution, several provisions empower the state to adopt remedial measures to correct systemic injustice. The most apparent of these is the right to equality in section 9. It provides that everyone is equal before the law and has the right to equal protection and benefit of the law and entrenches the right not to be discriminated against, either directly or indirectly, on a number of specifically enumerated and analogous grounds. Section 9(2) makes specific provision for remedial measures, not as an exception to the equality guarantee, but rather an extension thereof â a restitutionary equality conception. In the Preamble to the B-BBEE Act it is stated that one of the objectives with the Act is to âpromote the achievement of the constitutional right to equalityâ. The right to equality therefore occupies a central place in any constitutional discussion on the B-BBEE programme. The position on the constitutional validity of affirmative action measures, and therefore also the B-BBEE programme, is currently governed by the Constitutional Courtâs decision in Minister of Finance v Van Heerden, where the Court formulated three elements for a valid section 9(2) measure. The Courtâs approach in the Van Heerden case was therefore analysed in order to make a determination of the constitutionality of black economic empowerment measures. However, in order to place B-BBEE in its constitutional context the totality of constitutional provisions which touch on the programme, that is both mandating and limiting provisions, was considered. The practical operation of the programme was analysed and that information was used to draw conclusions on the constitutionality of the programme when placed in the framework provided by the relevant constitutional provisions. Recommendations were also offered which could address some of the problematic aspects of the programme identified.