Constitutionalism And Human Rights : A Troubled Continent Of Contested Conceptions Essay

After the storm clouds of apartheid lifted to reveal the Rainbow Nation of South Africa in 1994, the first democratically elected government was tasked with drawing up a new constitution that would properly enshrine the human rights that had so long been denied the majority of citizens. One source drawn upon in developing the new constitution was the Canadian Charter of Rights and Freedoms, itself then little more than a decade old. It is not necessary to be a constitutional scholar to detect many similarities between the two; indeed, Canada’s pride in this connection is such that it is highlighted on the Government of Canada 's webpage on bilateral relations with South Africa, which boasts “South Africa 's 1996 Constitution and Bill of Rights draw heavily on Canada 's Charter of Rights and Freedoms”.

During the second chapter of his book, Hudson addresses a second challenge: The Imperial Judiciary. Within this, he looks at “two alternative theoretical approaches” surrounding the judiciary and its power, to better fit with a democratic government (Hudson, 88). These two alternative theoretical approaches brew down to either being a judicial originalist (strict constructionists) or a judicial pragmatist (living Constitution).

A good text should be crafted in such a way that it commands a certain extent of rhetorical force in a bid to acquire the expected influence on the intended audience. This force exudes from the sensitivity of the issues addressed in a text, the language used, the credibility of the facts used, and the ability of the author to present the ideas in a manner that passes the test of time. The four texts reviewed in this essay manifest great rhetorical force in the way they handle the concept of postcolonialism. The varying authors used different methods to reinforce their views by appealing to various groups of readers and contributors in postcolonial discussions.

The concept of indigenous sovereignty is the most debated and contested subject among Indigenous academicians and politicians. To further expand the concept and understand indigenous sovereignty, Aileen brought a new insight and perspectives through the lenses of sociological thought. The Judicio-political is a commonly used approach by many theorists on indigenous sovereignty. In this respect, the author sought to challenge the concept of indigenous sovereignty situated within the Judicio-political framework and the overall epistemological foundation upon which it is built.

A third consideration in regard with the Aboriginal and Torres Strait Islander peoples is the meaning of sovereignty. The discourse on sovereignty is obscure and non-reflexive. It situates itself somewhere between moral axiology, social ideology and political and legal authority. The link between sovereignty and politics within the public discourse often mask oppressive power relations between Indigenous and non-Indigenous people (Prokhovnik, 2015). Furthermore, the mainstream political discourse undoubtedly takes sovereignty “as though it really were an uncontested foundation”, which erases the significance of the Indigenous as the first nations (Prokhovnik, 2015, p. 415). For the settlers, perhaps their self-importance as imperialists was more valued than embracing new notions of nationalism (Ward, 2001). For them, the establishment of colonies represented the expression of the external power of sovereign European states, even if only possible as a result of conquest, and their colonies “were considered sufficient justification for the imposition of sovereign power” (Patton, 1996, p. 149). Unfortunately, this unresolved ambivalence about the colonisation of Australia has also left the peoples of this country with an ambivalent identity (Connors, 2001).

As such, it is a precondition for rather than a part of democracy: the rules of political association are not themselves subject to negotiation. For Tully, this language of modern constitutionalism is not so much universal as imperial: it served to justify European imperialism and continues to justify the imperial rule of former colonies over Indigenous peoples (Tully 1995, 96). In response to this diagnosis, he argues in Strange Multiplicity (1995) that the language of contemporary constitutionalism is more diverse than is often realised. Alongside the language of modern constitutionalism there is the language of ‘common constitutionalism,’ derived from older traditions that allow for the persistence of diverse legal and political traditions within a given association. This developed through the English common-law tradition and through encounters with the different languages of non-European constitutionalism. In the course of the colonisation of North America, it led to the emergence of the Aboriginal and common law system of constitutional association, founded on the three principles of recognition, consent and

… is the process of the fixation of the colonial as a form of cross-classificatory, discriminatory knowledge within an interdictory discourse, and therefore, necessarily raises the question of the authorization of colonial representations; a question of authority that goes beyond the subject’s lack of priority (castration) to a historical crisis in the conceptuality of man as an object of regulatory power, as the subject of racial, cultural, national representation. (90)

Universal theories state that, regardless of race, origin, religious beliefs or culture, every human being is entitled to basic rights. These rights are inherent to the fundamental nature of that person, and are meant to be implemented transnationally, without bias. The universal theory of legalism states that the “only way to create social harmony is through legal rule”, and that there cannot be an expectation on individuals to regulate themselves (Juric). The regulation of individuals is achieved through government. However, the government agents are also subject to the law. This notion is known as the Rule of Law and states that no individual is above the law. Legalism proposes “that the law is not arbitrary, they are rooted in reason and agreed upon by all of us” (Juric). Legalism makes the assertion that the only creditable government is democratic in nature. Through a majority vote democratic governments give the individuals of the society the ability to choose the legislative party that is responsible for creating the laws that the citizens abide by. In this way, legalism states that citizens have influence over the laws and policies of their country. In order for Legalism to be considered a valid universal human rights theory, it must be accepted by all nations. This paper discusses the notion that the universalist theory legalism is inoperative because of its Cultural limitations, and difficulty implementing Human rights Standards. There is a strong Western

It is a common knowledge that politics is concerned with power: the power to make decisions, to control

The term ‘postcolonialism’ has become so diverse and unorganized that it is somehow impossible to define it clearly or describe what its study may imply.

In the West human rights were born in the modern age as a result of the Industrial Revolution and thrived in the age of the “liberal state.” With the establishment and consolidation of modern democratic political structure since the late eighteenth century, the value of individual freedom was substantiated and power of individuals recognized. Consequently, the mentality instilled in people for centuries that the sovereignty belongs to the ruler broke off and was replaced by the new mindset that the nation is rooted in people. It was John Locke (1632-1704) who first set rights on the political agenda. He asserted that every man has the right “to preserve his life, liberty and estate” (Locke, 1962, p. 87). This ideal was later echoed and

Samuel Moyn, in his work The Last Utopia, argues that, at its core, the anticolonial movement was not a human rights struggle, writing, “If anticolonialism generally spurned human rights, one might say, it was because it was a rights of man movement, with all the prior fidelity to the state that concept implied in modern history.” Moyn’s emphasis on the state here is telling. Because the rights that a nation could provide were particular to its citizens, not international, they could not be human rights. The “rights of man” were not the rights of all. Further, Moyn views the concept of self-determination as an idea that had to be taken over by human rights. As he states, “Self-determination would have to give way to human rights.” Through this, it can be seen that he does away with the idea that self-determination and human rights could coexist together. Rather, for human rights to succeed, self-determination had to fail. Between Moyn’s dismissal of the state as a vehicle to enable the development of human rights to his argument that self-determination and human rights were two concepts that would have to vie for implementation, it is evident that he does not regard decolonization as a human rights struggle.

These concepts of autonomy, self-determination and the voice which is recognised in indigenous communities goes beyond the Ayoreo colonials due to the powerful movement which started in the 1960s (Glauser, 2011). In 2007, the United Nations

The contemporary concern for indigenous people at the international platform gained its popularity from the long-standing Sui generis deviation of self-determination standard, that supplements the Sui generis deviation which the twentieth century classic colonialism represents (Anaya 1996). Indeed, the concept of indigenous people is usually understood to mean a culturally cohesive group who suffers inequality with the state wherein they leave because of historical empire or conquest (UN DOC 1986; Anaya 1996). However, the year 1994, the sub-Commission on prevention of discrimination and protection of Minorities adopted a draft on the declaration on the rights of the indigenous peoples: “they acknowledged that UN Charter, the International Covenants affirmed the fundamental importance of the right of self-determination of all peoples, by virtue of which they can freely determine political status and freely pursue their economic, social and cultural development, bearing in mind that nothing in this declaration may be used to deny any peoples their right of self-determination” (Brownlie & Guy, 2006:195-6). Article 3 of the UN declaration of the rights of indigenous people asserts that “indigenous peoples have the right of self-determination of all peoples, by which they can freely determine political status and freely pursue their economic, social and cultural development” (Brownlie & Guy, 2006:197). Furthermore, Article 6 states that “indigenous peoples have the collective

Most countries have a written constitution, which is a single document that delivers straightforward principles that practise public power and how they exercise that public power. Furthermore, it offers techniques and procedures of how the constitutional rules are enforced and how they can be changed. For New Zealand, we follow the United Kingdom and there Westminster system, as our constitution in “unwritten”. New Zealand’s constitution has always gained controversy, but the fact of the matter is we do have a constitution even if it’s not documented or compiled into one document as a whole. It is a very important aspect of New Zealand’s history and it is what shapes today’s society. This essay seeks to examination what a constitution in general terms is, what New Zealand’s constitution consists of, how the monarch or head of state links directly to New Zealand’s constitution and connections with the government, what republicans believe in and what a republican society looks like from countries that live in it, explanations of a democracy, and lastly the effects of what would happen regarding the constitution, government, and society if there was a decision made to abolish the monarch in New Zealand.