Wednesday, October 6, 2010

Law and Government in the Commonwealth of Nations

Government

You should be able to explain what each of the following six terms mean and give some examples of how they function. As with each of the sections in this course, it is important to look for the similarities between each of the nations under discussion.


Work through:


  • Parliamentary system
  • Westminster system
  • Federalism
  • Bicameralism
  • Separation of Powers

The United Kingdom and Australia (and Sweden) each share a system of constitutional monarchy in which political authority is vested in a parliament. India and South Africa are republics, but in the latter the head of state is also the head of the government. The lower house in South Africa elects the president. India has a system where the parliament is more powerful than the head of state (the president), who is elected by both houses of parliament.


Parliamentary System

A parliamentary system is a system of government in which the ministers of the executive branch are drawn from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined. In such a system, the head of government is both de facto chief executive and chief legislator.


Parliamentary systems are characterized by no clear-cut separation of powers between the executive and legislative branches (follow the links for explanations of each), leading to a different set of checks and balances compared to those found in presidential systems. Parliamentary systems usually have a clear differentiation between the head of government and the head of state, with the head of government being the prime minister or premier, and the head of state often being a figurehead, often either a president (elected either popularly or by the parliament) or a hereditary monarch (often in a constitutional monarchy).


India, Australia and England have Westminster systems of parliament in place. These parliaments tend to have a more adversarial style of debate and the plenary session of parliament is more important than committees. This is a contrast to the Swedish parliamentary system. The 1983 constitution abolished the Westminster system in South Africa.


The Republic of South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary, operating in a nearly unique system that combines aspects of parliamentary and presidential systems. Legislative authority is held by the Parliament of South Africa. Executive authority is vested in the President of South Africa, who is head of state and head of government, and his or her Cabinet. The president is elected from the Parliament to serve a fixed term. South Africa's government differs greatly from those of other Commonwealth nations. The national, provincial and local levels of government all have legislative and executive authority in their own spheres, and are defined in the South African Constitution as "distinctive, interdependent and interrelated".

Videos illustrating the more adversarial style of Westminster parliaments:


Australia


England


India



The Westminster System
The Westminster system is a democratic, parliamentary system of government
modelled after that of the United Kingdom system, as used in the Palace of Westminster, the location of the Parliament of the United Kingdom. The system is a series of procedures for operating a legislature. It is used, or was once used, in the national legislatures and/or sub-national legislatures of most Commonwealth and ex-Commonwealth nations, beginning with the Canadian provinces in the mid-19th century. It is also used in Australia, India, Ireland, Jamaica, Malaysia, New Zealand, Singapore and Malta. There are other parliamentary systems whose procedures differ considerably from the Westminster system.


Important elements in the Westminster System include:

Federalism
Both India and Australia are federated nation states. A federation (Latin: foedus; covenant) is a union comprising a number of partially self-governing states or regions united by a central ("federal") government. In a federation, the self-governing status of the component states is typically constitutionally entrenched and may not be altered by a unilateral decision of the central government. (more on federation/federal)


Political federalism is a political philosophy in which a group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is the system in which the power to govern is shared between the national and state governments, creating what is often called a federation. Proponents are often called federalists.


In Europe, "federalism" is sometimes used to describe those who favour a stronger federal government (for example, with governance under the European Union) and weaker provincial governments. In federal nations of Europe (such as Germany, Austria and Switzerland) or South America (such as Argentina or Brazil), the term "strong federalism" usually means sub-national states having more power than the national (federal) government, in contrast with a centralist system.


In Canada, federalism means opposition to sovereignty movements (usually that of Quebec). The same is historically true in the United States. Advocates of a weaker federal government and stronger state government are those that generally favour confederation, often related to "anti-federalists". The state or regional governments strive to cooperate with all the nations. The old statement of this position can be found in The Federalist, which argued federalism helps enshrine the principle of due process by limiting arbitrary action from the state. First, federalism can limit government power and infringe rights, since it allows the possibility that a legislature wishing to restrict liberties will lack the constitutional power. The level of government that possesses the power lacks the desire. Second, the legalistic decision-making processes of federal systems limit the speed with which governments can act.


On 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America, though through a Westminster system. According to the federal system of Australia power is distributed along national and state lines. Basic education, roads and transport, health and hospitals and most forms of law enforcement (i.e. police) are carried out at state level. So in Australia the police in the state of Queensland are a totally different organisation to the police in the state of New South Wales. At the federal level higher education, defence, boarder controls, national parks, and some forms of law enforcement are carried out at the national federal level. While in Sweden there is some distribution of services at local levels, it is not a federated system as the laws and administrative bodies are uniform across the nation.


For more on federalism in Australia

Bicameralism
Please remember that all the nations we have discussed have bicameral system of parliament. Bicameralism (bi + Latin camera, chamber) is the practice of having two legislative or parliamentary chambers. Thus, a bicameral parliament or bicameral legislature is a legislature which consists of two chambers or houses. Bicameralism is an essential and defining feature of the classical notion of mixed government. Bicameral legislatures tend to require a concurrent majority to pass legislation. In India the two chambers are the Lok Sabha (alternatively titled, the House of the People, by the Constitution of India) is the lower house in the Parliament and the Rajya Sabha (meaning the "Council of States") is the upper house of the Parliament of India. In Australia the House of Representatives in the lower house of the Parliament and the Senate is the upper house, which represents each of the states. The National Council of Provinces (NCOP) is the upper house of the Parliament of South Africa under the (post-apartheid) constitution which came into full effect in 1997. It replaced the former Senate, but is very similar to that body, and to many other upper houses of legislatures throughout the world, in that its purpose is to represent the specific viewpoints of individual provinces and urban areas. The National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 Members elected for a five-year term on the basis of a common voters’ roll. It is presided over by a Speaker, assisted by a Deputy Speaker.

Bicameralism is another example of the checks and balances in the Westminster system of parliament. The two-houses model divides the power of the legislature between two bodies of elected representatives. A bill may be proposed in the lower house but it must pass through both houses in order to become law. If the bill is 'blocked' in the upper house (where the government may not necessarily have a majority) it must return to the lower house for amendment and further debate. In 1975 in Australia this happened to the budget bill for the year. The government could not pass the bill and after months of trying a crisis ensued. The Governor General, as the representative of the head of state (the Queen of England) dissolved parliament and an election was called, which the incumbent government lost. This episode is now referred to as 'The Constitutional Crisis'.


The Separation of Powers

“A 'pure doctrine' of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.” (Quoted in “Separation of Powers in the Westminster System” http://www.parliament.qld.gov.au/aspg/papers/930913.pdf)


The Westminster system effects only a partial separation of powers:


Institution



Power



Personnel



Control



Parliament






Make laws






Representatives elected to lower House. Elected or appointed to upper House.



(Royal Assent) Supervision and/or expulsion by the House



Executive Council (Cabinet)






Executive power



Ministers appointed by the Crown with the support of the lower House. Must be Members of the Parliament



Maintain support of the lower House. Parliamentary and Judicial Review.



The Courts






Judicial power



Judges appointed by the Executive



Superior Court justices removal by the Crown an address from both Houses on certain on grounds.

















In the United Kingdom, the executive forms a subset of the legislature, as does—to a lesser extent—the judiciary. The Prime Minister, the Chief Executive, must sit as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in Britain are amongst the most independent in the world, the Law Lords, who are the final arbiters of judicial disputes in the UK, sit simultaneously in the House of Lords, the upper house of the legislature, although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence.

The media is often referred to as the 'fourth estate', which means it is thought to operate within the doctrine of the separation of powers in a democratic society. The parliamentary, executive or legal arms of government should not exert a controlling influence over media. Freedom of expression and freedom of the press are vital for a democracy. The separation of powers attempts to protect the right of multiplicity of expression. Criticism of the role of African National Congress officials in the running of the South African Broadcasting Corporation (SABC) is one example of the separation of powers being referenced in the government and politic of a state in relation to media.

The Teaching Notes for this lecture can be downloaded from here: Document IconEnglish Realia Lecture 3 Law and Govt.doc

Work through the following key terms and concepts in your groups using the course compendium and related materials:

  • Common law
  • Terra Nullius
  • Trial by jury
  • English law /Magna Carta
  • Customary law
  • British East India Company
  • Constitution
  • Conference of Berlin
  • Apartheid
  • Mabo case

Elements of law relate to every one of the other areas discussed in this course, but particularly to government.

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Legal systems of the world. The blue is civil law and the tan is common law systems. The brown is a mixed common law and civil law code.

Law is, once again, a complicated subject. In South Africa there is a mixed system of Common and Civil Law. In Australia, India and England Common Law is the system of law. The main difference that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them. In both Australia and South Africa there are systems of traditional or tribal law which are even acknowledged outside indigenous communities. Here I am focusing on law in relation to the English speaking history of the modern states. Therefore much of the law discussed in the course is in historical contexts. The focus on historical contexts ties in with the other areas of the course; with colonisation, decolonisation, other formal institutions and globalisation. Most of the events and decisions that occurred in relation to the spread of English language and culture in the former British Empire had a legal framework. Some things were against that law and so things were made possible by it.

The common features of the legal systems in each country will be the focus of the seminar on the topic. There are three concepts you must know the broad definition of. These are:


'''1. Common Law'''
Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action. The unwritten law of the realm of England deriving from customary alws of the Anglo-Saxo peoples, embodied in the decisions of the judges of the Common Law Courts, and distinct from written or statute law.

The common law is created and refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.

In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, most of the United States and Canada, and other former colonies of the British Empire. Australia and India both have an exclusive common law system operating through the various levels of state (local, regional and central). South Africa has a mixed system of common and civil law, while England (rather naturally) has a common law system. Sweden, on the other hand has an exclusively civil law legal system. Civil law code is a form of statutory law: "written law (as opposed to oral or customary law) set down by a legislature or other governing authority such as the executive branch of government in response to a perceived need to clarify the functioning of government, improve civil order, to codify existing law, or for an individual or company to obtain special treatment. (Contrast common law.) In addition to the statutes passed by the national or state legislature, lower authorities or municipalities may also promulgate administrative regulations or municipal ordinances that have the force of law — the process of creating these administrative decrees are generally classified as rulemaking. While these enactments are subordinate to the law of the whole state or nation, they are nonetheless a part of the body of a jurisdiction's statutory law."

'''2. Terra Nullius'''
Terra nullius (English pronunciation IPA: /ˈtɛrə nəˈlaɪəs/, Latin pronunciation IPA: /ˈtɛrːa nʊlːˈiʊs/) is a Latin expression deriving from Roman Law meaning "land belonging to no one", "nobody's land" i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law. Modern applications of the term terra nullius stem from 16th and 17th century doctrines describing land that was unclaimed by a sovereign state recognized by European powers. This modern term refers to a specific application of the concept of res nullius.

During the era of European colonialism the doctrine gave legal force to the claiming and settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist. The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius applied to uncultivated land. As the indigenous people were not (in this view) using the land, those who could cultivate the land had a right to claim it.

'''3. Trial by Jury'''
Trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is to be distinguished from a bench trial where a judge or panel of judges make all decisions. English common law and the United States Constitution recognize the right to a jury trial to be a fundamental civil liberty or civil right; however most other nations do not recognize it as such, because jury trials evolved within common law systems rather than civil law systems. Jury trials are of far less importance (or of no importance) in countries that do not have a common law system. Juries weigh the evidence and testimony to determine questions of fact and of law. Jury determination of questions of law, sometimes called jury nullification, may lead to the overturning of a verdict by the judge. Trial by jury was abolished in India in 1960 and in South Africa in 1969. Trial by jury continues in Britain and Australia as well as other Commonwealth countries.

As well it must be remembered that both colonisation and decolonisation had legal principles as their basis. Globalisation, which shall be discussed in a later lecture, has a set of legal principles at its base, usually resulting from treaty laws. While it is not necessary in this course to be familiar with international treaty law, it is necessary to be able to recognise the importance of law in the formation of the nation states we discuss.

England
The Magna Carta
Magna Carta (Latin for "Great Charter", literally "Great Paper"), also called Magna Carta Libertatum ("Great Charter of Freedoms"), is an English charter originally issued in 1215. Magna Carta was the most significant early influence on the extensive historical process that led to the rule of constitutional law today. Magna Carta influenced the development of the common law and many constitutional documents, such as the United States Constitution and Bill of Rights, and is considered one of the most important legal documents in the history of democracy.
Magna Carta was originally written because of disagreements among Pope Innocent III, King John and the English barons about the rights of the King. Magna Carta required the King to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the King's subjects, whether free or fettered — most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment. Many clauses were renewed throughout the Middle Ages, and further during the Tudor and Stuart periods, and the 18th century. By the late 19th century, most clauses in their original form had been repealed from English law.
There are some popular misconceptions about Magna Carta, such as that it was the first document to limit the power of an English King by law, that it in practice limited the power of the king, and that it is a single static document. In fact it was not the first (it was partly based on the Charter of Liberties); it mostly did not limit the power of the King in the Middle Ages; and it is a collection of documents referred to under a common name.

[]
English Law and Capitalism

English Law English law, the legal system of England and Wales, is the basis of common law legal systems throughout the world (as opposed to civil law or pluralist systems in other countries, such as Scots law). It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to the American Revolution is still part of the law of the United States, except in Louisiana, and provides the basis for many American legal traditions and policies, though it has no superseding jurisdiction.
The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them. A decision of the highest appeal court in England and Wales, the House of Lords, is binding on every other court in the hierarchy, and they will follow its directions. For example, there is no statute making murder illegal. It is a common law crime - so although there is no written Act of Parliament making murder illegal, it is illegal by virtue of the constitutional authority of the courts and their previous decisions. Common law can be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today, but had previously allowed the death penalty.
England and Wales are constituent countries of the United Kingdom, which is a member of the European Union and EU law is effective in the UK. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form, and the European Court of Justice, a predominantly civil law court, can direct English and Welsh courts on the meaning of EU law.
The oldest law currently in force is the Distress Act 1267, part of the Statute of Marlborough, (52 Hen. 3). Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are still extant, but they date to the reissuing of the law in 1297.

[]
Different Legal Systems in British Law

India
Arthashastra 3rd Century B.C.E.
15 Volumes. Centrally, Arthaśāstra argues for an autocracy managing an efficient and solid economy. It discusses the ethics of economics and the duties and obligations of a king. The scope of Arthaśāstra is, however, far wider than statecraft, and it offers an outline of the entire legal and bureaucratic framework for administering a kingdom, with a wealth of descriptive cultural detail on topics such as mineralogy, mining and metals, agriculture, animal husbandry, medicine and the use of wildlife. The Arthaśāstra also focuses on issues of welfare (for instance, redistribution of wealth during a famine) and the collective ethics that hold a society together.

The British East India Company
The British Parliament enacted a series of laws, among which the Regulating Act of 1773 stood first, to curb the company traders' unrestrained commercial activities and to bring about some order in territories under company control. Limiting the company charter to periods of twenty years, subject to review upon renewal, the 1773 act gave the British government supervisory rights over the Bengal, Bombay, and Madras presidencies. The Regulating Act also created a unified administration for India, uniting the three presidencies under the authority of the Bengal's governor, who was elevated to the new position of governor-general. Bengal was given preeminence over the others because of its enormous commercial vitality, and Calcutta became the seat of British power in India. Warren Hastings was the first incumbent (1773-1785). The India Act of 1784 sometimes described as the "half-loaf system," as it sought to mediate between Parliament and the company directors, enhanced Parliament's control by establishing the Board of Control, whose members were selected from the cabinet. The Charter Act of 1813 recognized British moral responsibility by introducing just and humane laws in India, foreshadowing future social legislation, and outlawing a number of traditional practices such as sati and thagi (or thuggee, robbery coupled with ritual murder). The Charter Act of 1833 deprived the presidencies of the power to make laws, concentrating legislative power with the Governor-General and his council. Indian Law Today

'''Union and State Judiciary'''
The Union Judiciary consists of the Supreme Court of India. The Supreme Court is the ultimate court of appeals for the nation. It hears appeals from the High Courts and acts as a court of review over subordinate tribunals. The Supreme Court exercises original jurisdiction in disputes between the Union and the States or between the States inter-se. The Supreme Court can also issue writs in the nature of habeas corpus, mandamus, prohibition, and certiorari and quo warranto for the enforcement of fundamental rights.
The Supreme Court consists of a Chief Justice and such number of puisne judges as the Union Legislative may legislate. The judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India. The senior-most puisne judge is normally appointed the Chief Justice of India. A judge of the Supreme Court holds office until he attains the age of 65 years. He could be removed earlier by impeachment before both the Houses of Parliament.
The State Judiciary consists of a High Courts for each State and subordinate courts. Each High Court consists of a Chief Justice and a number of puisne judges. A High Court judge is appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the State. A High Court judge holds office till he attains the age of 62 years. A High Court judge can be impeached in the same manner as a Supreme Court judge.
The High Court hears appeals from the subordinate courts and tribunals. It also acts as a court of revision for the subordinate courts and tribunals. The High Court has powers to issue writs of habeas corpus, certiorari and others. Some High Courts also exercise original jurisdiction in civil matters and admiralty jurisdiction. The language of the Supreme Court and the High Court is English, although the national language Hindi is rapidly gaining ground.
Subordinate courts are divided into criminal and civil courts. The civil courts consists of Munsif courts and courts of Subordinate Judges. Appeals normally lie from these courts to the District Court and then to the High Court. A litigant is normally entitled to two appeals-one appeal on facts and law and a second appeal on law alone. The criminal courts consist of Magistrates of first or second class and the Courts of Session. Appeals lie to the Court of Session and then to the High Court.
Specialised tribunals are established under various enactments such as the Income tax Appellate Tribunal, the Company Law Board, the Sales Tax Appellate Tribunal, the Consumer Forums, the Central and State Administrative Tribunals, the Debt Recovery Tribunal. All these tribunals are under the superintendence of the High Court within whose territorial jurisdiction they function. ' Independence of the Judiciary from the Executive

Indian Law Today
India is often described as the largest democracy in the world. It is a multi-party republic which recognises and protects the separation of powers in the constitution.

The Constitution of India The Constitution of India lays down the framework on which Indian polity is run. The Constitution declares India to be a sovereign socialist secular democratic republic, assuring its citizens of justice, equality, and liberty. It was passed by the Constituent Assembly of India on November 26, 1949, and came into effect on January 26, 1950. India celebrates January 26 each year as Republic Day. It is the longest written constitution of any independent nation in the world, containing 395 articles and 12 schedules, as well as numerous amendments, for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation.
The Constitution lays down the basic structure of government under which the people chose themselves to be governed. It establishes the main organs of government - the executive , the legislature and the judiciary. The Constitution not only defines the powers of each organ, but also demarcates their responsibilities. It regulates the relationship between the different organs and between the government and the people.
The Constitution is superior to all other laws of the country. Every law enacted by the government has to be in conformity with the Constitution. The Constitution spells out the Fundamental Rights, Directive Principles and Duties of citizens

Southern Africa
The Conference of Berlin (1884-85)
The exploration of Africa by Europeans started with the Portuguese sailing along Africa's coast in 1450. The success the Portuguese had on these voyages encouraged other European naval powers to explore Africa. By the mid-nineteenth century, Europeans had established colonies all along the African coast and competed for control. The push for overseas territories was made even more intense by the Industrial Revolution and the need for cheap labour, raw material, and new markets. The competition between the Europeans often lead to violent conflict.
This violent conflict was terribly wasteful, so Portugal suggested the idea of an international conference that could settle the territorial disputes that arose from European activities in the Congo region. The Berlin Conference was held in Berlin between November 15, 1884 and November 26, 1885, under the leadership of German Chancellor Otto von Bismarck. Although controlling the slave trade and promoting humanitarian idealism were promoted as the focus of the conference, the conference only passed empty resolutions about the ending of slave trade and providing for the welfare of Africa. In truth, the result of the Conference was a method of dividing the continent of Africa between the European powers.
Article 34 of the Berlin Act states that any European nation that took possession of an African coast, or named themselves as “protectorate” of one, had to inform the signatory powers of the Berlin Act of this action. If this was not done then their claim would not be recognized. This article introduced the “spheres of influence” doctrine, the control of a coast also meant that they would control the hinterland to an almost unlimited distance. Article 35 determined that in order to occupy a coastal possession, the nation also had to prove that they controlled sufficient authority there to protect existing rights such as freedom of trade and transit. This was called the doctrine of “effective occupation” and it made the conquest of Africa a less bloody process.
The Berlin Act was an important change in international affairs. It created the rules for “effective occupation” of conquered lands, ensuring that the division of Africa would take place without war among the European powers. Through the Berlin Act, the European powers justified dividing a continent among themselves without considering the desires of the indigenous peoples. While this appears extremely arrogant to us now, it seemed to them to be the obvious extension of their imperialism. The Berlin Conference is one of the clearest examples of the assumptions and preconceptions of this era, and its effects on Africa can still be seen today. The arbitrary boundaries the Europeans imposed often divided an ethnic group and also brought enemies under the same government causing strife that still exists today.

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Aparthied was achieved through law and the enforcement of law.


Apartheid
Apartheid (meaning apartness in Afrikaans, cognate to English apart and -hood) was a system of legalized racial segregation enforced by the National Party (NP) South African government between 1948 and 1994. It arose from a longer history of settler rule and Dutch and British colonialism. These colonial relations became policies of separation after South Africa gained self-governance as a dominion within the British Empire and were expanded and formalised into a system of legitimised racism and white nationalism after 1948. Apartheid was dismantled in a series of negotiations from 1990 to 1993, culminating in elections in 1994, the first in South Africa with universal suffrage, but the legacies of apartheid still shape South African politics and society. Apartheid legislation classified South Africa's inhabitants and visitors into racial groups (Black, White, Coloured and Indian). The system of apartheid sparked significant internal resistance. The government responded to a series of popular uprisings and protests with police brutality, which in turn increased local support for the armed resistance struggle. In response to popular and political resistance, the apartheid government resorted to detentions without trial, torture, censorship, and the banning of political opposition from organisations such as the African National Congress, the Black Consciousness Movement, the Azanian People's Organisation, the Pan Africanist Congress, and the United Democratic Front, which were popularly considered liberation movements. Despite suffering extreme repression and exile, these organisations maintained popular support for the anti-apartheid struggle in South Africa and forged connections with the international anti-apartheid movement during this period. White South Africa became increasingly militarised, embarking on the border war with the covert support of the USA, and later sending the South African Defence Force into black townships. The anti-apartheid organisations had strong links with other liberation struggles in Africa, and often saw their armed resistance to apartheid as part of the socialist struggle against capitalism. In 1973, an International Convention of the United Nations General Assembly ruled that the system of apartheid amounted to a crime against humanity, and defined the crime of apartheid as "inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them."

The Union of South Africa
The Union of South Africa is the historic predecessor to the present-day state of the Republic of South Africa. It came into being on 31 May 1910, with the previously separate colonies of the Cape, Natal, Transvaal and the Orange Free State becoming Provinces in the Union of South Africa. It was founded as a dominion, later Commonwealth realm, but became a republic on 31 May 1961, henceforth known as the Republic of South Africa. Unlike Canada and Australia, the Union was a unitary state, rather than a federation, with each colony's parliaments being abolished and replaced with provincial councils. A bicameral parliament was created, consisting of a House of Assembly and Senate, and its members were elected mostly by the country's white minority. During the course of the Union the franchise changed on several occasions often to suit the needs of the government of the day. Parliamentary Supremacy was entrenched and save for procedural safeguards the courts were unable to intervene in Parliament's decisions or policies.

Modern Law in South Africa
The Law of South Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from its Dutch colonizers, a common law system from its English colonizers, and indigenous law, often termed African customary law. These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law. As a general rule, South Africa follows English Law in the areas of Procedural Law, the Law of Contracts and the Law of Evidence, while Roman-Dutch Common Law is followed in the South African Law of Delict (tort), Law of Persons, Law of Things, Family Law etc. Today, another strand has been added to this weave: the Constitution (1996), which is supreme law. South Africa has a unified judicial system. The Supreme Court has a supreme appellate division and provincial and local divisions with both original and appellate jurisdictions. The Court of Appeals, with its seat in Bloemfontein, the judicial capital, normally consists of the chief justice and a variable number of appellate judges. Special superior courts may be constituted to try security cases, and there were, in 1986, 309 magistrates' offices vested with certain judicial as well as administrative powers. Judges are appointed by the state president. There were no nonwhite judges as of 1987. The common law of the Republic of South Africa is Roman-Dutch law, which has evolved from the uncodified law of the Netherlands as it existed when the Cape of Good Hope was ceded to Great Britain. It has been influenced by English common law in procedures more than in substantive matters. Trial by jury was abolished in 1969. Black tribal chiefs and headmen have limited jurisdiction to hear cases in traditional courts. There are appeals courts, divorce courts, and children's courts for blacks. In self-governing black homelands, lower courts have been established by the legislative assemblies. The judiciary has moved in the direction of more independence from the other branches with instances of alleged political interference with courts on the decline. Prospects have considerably improved for nonwhite law school graduates to receive "Articles of Clerkship" which qualify them for admission to the bar. A new constitution went into effect partially in February 1997, with complete implementation scheduled for 1999. The 1994 interim constitution provided for an independent judiciary and the authorities respect this provision in practice. There is also a constitutional court as highest court for constitutional issues. It provides for due process, including the right to a fair, public trail, legal counsel, and the right to appeal.

Constitution, Government & Legislation in South Africa
Following the 1994 elections, South Africa was governed under an interim constitution. This constitution required the Constituent Assembly (CA) to draft and approve a permanent constitution by May 9, 1996. After review by the Constitutional Court and intensive negotiations within the CA, a revised draft was certified by the Constitutional Court on December 2, 1996. President Nelson Mandela signed the new constitution into law on December 10, and it entered into force on February 3, 1997.

Australia
Charter of Justice 2 April 1787 (UK)
This document is the authority for the establishment of the first New South Wales Courts of Criminal and Civil Jurisdiction. The Charter of Justice is in the form of Letters Patent providing for a Deputy Judge-Advocate and six court officers to be appointed by the Governor and the establishment of a Civil Court. The Governor was required to give his permission to any death sentence imposed by the Court, and was empowered to give pardons. The Civil Court had the power to deal with disputes over property and had jurisdiction over wills and estates. As the provision for establishing a Civil Court had not been included in the Act there was no legislative basis for its foundation.

Law and land in New South Wales
From 1788 until 1823, the Colony of New South Wales was a penal colony. This meant that there were mainly convicts, marines and the wives of the marines although free settlers started to arrive in 1793. In 1823, the British government established a New South Wales parliament by setting up a Legislative Council as well as a Supreme Court under the New South Wales Act 1823 (UK). This Act is now seen as a first step towards a 'responsible' Parliament in Australia.
It was also intended to establish English law in the colony with the establishment of NSW criminal and civil courts. However, there were significant departures from English law when the first cases were heard in the courts. The first civil case heard in Australia, in July 1788, was brought by a convict couple. The convicts successfully sued the captain of the ship in which they had been transported for the loss of a parcel. In Britain, as convicts, they would have had no rights to bring this case forward.
The question of land ownership by Indigenous people was not dealt with by the colonisers until the mid-1830s. In 1835, John Batman signed two 'treaties' with Kulin people to 'purchase' 600,000 acres of land between what is now Melbourne and the Bellarine Peninsula. In response to these treaties and other arrangements between free settlers and Indigenous inhabitants, such as around Camden, the NSW Governor, Sir Richard Bourke issued a proclamation. Bourke's proclamation established the notion that the land belonged to no-one prior to the British crown taking possession.
To effectively over-ride the legitimacy of the 'Batman treaty' the British Colonial Office felt the need to issue another Proclamation. The Colonial Office proclamation stated that people found in possession of land without the authority of the government would be considered trespassers. This was despite and because many other people, including a report to the House of Commons in 1837, recognised that Aboriginal occupants had rights in land. Nevertheless, the law in New South Wales variously applied the principles expressed in Bourke's proclamation. This would not change until the Australian High Court's decision in the Mabo Case in 1992.

Mabo Case

Mabo v Queensland (No 1) was a significant court case decided in the High Court of Australia on December 8, 1988. It found that the Queensland Coast Islands Declaratory Act, which attempted to retrospectively abolish native title rights, was not valid according to the Racial Discrimination Act 1975. Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. The effective result of the judgement was to make irrelevant the declaration of terra nullius, or "land belonging to no-one" which had been taken to occur from the commencement British colonisation in 1788, and to recognise a form of native title. It is argued by some historians that the Royal Proclamation of 1763 was seen to apply to Australia at the time of settlement, and therefore governed unceded territories. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined.

Terra Nullius

Terra nullius (English pronunciation IPA: /ˈtɛrə nəˈlaɪəs/, Latin pronunciation IPA: ˈtɛrːa nʊlːˈiʊs) is a Latin expression deriving from Roman Law meaning "nobody's land" i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law. In the late eighteenth century, many believed that a society without agriculture was therefore a society without property rights in land. The most familiar statement of this view was again from Vattel, who held that nonagricultural peoples' "unsettled habitation in these immense regions cannot be accounted a true and legal possession" and that European farmers accordingly might lawfully settle on their land. Vattel was writing with reference to North America—like many eighteenth-century European intellectuals he erroneously believed that American Indians were not farmers—but his words obviously applied to Australia as well. It has since been conclusively proven that the Australian Aboriginal peoples had both a system of property rights and agriculture in their traditional societies.

The Constitution of the Commonwealth of Australia (1900)
The Constitution of Australia is the law under which the Australian Commonwealth government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referendums held over 1898 - 1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom. The Constitution came into force on 1 January 1901. Even though the Constitution was originally given legal force by an Act of the United Kingdom parliament, as Australia is now an independent country, the United Kingdom parliament has no power to change the Constitution, and only the Australian people can amend it (by referendum). Letters patent issued by the Crown, on the advice of Australian ministers, are also part of the Constitution of Australia.
Other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986, which was passed in equivalent forms by the Parliaments of every Australian state, the United Kingdom, and the Australian Federal Parliament. Together, these Acts had the effect of severing all constitutional links between Australia and the United Kingdom. Even though the same person, Queen Elizabeth II, is the head of state of both countries, she acts in a distinct capacity as head of state of each.
Under Australia's common law system, the High Court of Australia and the Federal Court of Australia have the authority to interpret constitutional provisions. Their decisions determine the interpretation and application of the constitution.

Trial by Jury
Trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is to be distinguished from a bench trial where a judge or panel of judges make all decisions. Jury are selected by ballot. An example of the thought behind the Jury system and Jury duty is expressed by this passage from the Northern Territory in Australia:

"In the Northern Territory, persons charged with serious offences are tried by a Judge and jury in the Supreme Court. This ensures every person accused of a serious crime receives a fair trial, free from government or political influence. At the same time it imposes on members of the public a share in the responsibility for upholding the laws made for the protection of the community from violence, dishonesty and other forms of wrongdoing. Jury service may involve some temporary inconvenience to those chosen (by ballot) to serve, but it is essential to the maintenance of individual freedom and security. In serving as a juror, you are participating in a process that has been responsible for defending the rights of British and Australian citizens for hundreds of years." NT Govt

Customary Law

Systems of traditional are recognised today in India, Australia and South Africa under the concept of customary law.

Aboriginal Customary Law in Australia
There is no generally accepted definition of what constitutes Aboriginal customary law, not least because, it is almost impossible to describe comprehensively. There is secrecy surrounding many of the laws, some of which are “sacred and not to be spoken about to anyone”, except the members of the relevant tribal group. Tribal laws differ from community to community. Information obtained from one Aboriginal tribe would not include information about the laws of another tribe as they would not be permitted to speak about those other laws. A universal definition cannot be formulated by generalising from a sample description.
Further, Aboriginal laws are part of an oral culture, handed down from generation to generation by word of mouth.18 There is no written code or statement of customary laws. Aboriginal law was encoded in each group’s religious tradition. This fusion of law and religion in Aboriginal culture gives rise to its own obstacle to defining that law. Eggleston has identified the difficulty in the following terms:
Law and religion were intimately bound up in Aboriginal society ... and any attempt to identify certain segments of Aboriginal life as “legal” involves the imposition of alien categories of thought on the tribal society. Some modern Aborigines have made comparisons between their law and the Australian legal system on the basis of common notions of rules and sanctions for their breach but they have also interpreted the word “law” to mean “way of life” and “religion” ... This is not to deny that there was a system of “law” in traditional Aboriginal society. I am using a functional definition of “law”, one which places primary emphasis on law as a means of social control ... The use of the word “law” to describe measures of social control in Aboriginal society is justified ... by the belief that every society must have means for settling disputes, and must have law in this sense, no matter how difficult it might be to identify binding rules or institutions corresponding to the legal system in our own society.

Customary Law in India
Custom must be reasonable: A custom derives its validity from being reasonable at inception and present exercise. The Indian decisions are in harmony with the English authorities. Menoor v. Denne and Tyson v. Smith, which elaborate on the reasonableness of customs. A customary right, namely the right to take earth for making pots, was claimed by the kumbhar community of a village and upheld in the Nagpur case of Bhiku v. Shooram, though it was a case of profits. In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme Court held that a customary right in the exercise of which the residents of a locality were entitled to excavate stones for purposes of trade (and not for domestic or agricultural purposes) would ex facie be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the right. The custom was therefore unreasonable.

Customary Law in South Africa
In civil matters, customary courts should have jurisdiction over cases arising out of customary law. Issues relating to dissolution of marriage (whether customary or civil), custody and guardianship of minors, or maintenance, are excluded from the jurisdiction of these courts. As far as criminal jurisdiction is concerned, customary courts can handle offences that were committed in the area of the court's jurisdiction except offences listed in the Schedule attached to the Bill. A monetary ceiling on the jurisdiction of customary courts will be fixed by the Minister from time to time. Legal practitioners are excluded from these courts. However, a person who is a party to a matter before a customary court may be represented by any other person of his or her choice in accordance with customary law.

Australian Aboriginal People and the Law
"Until 1967 any discussion about the legal status of Aboriginal people was complicated by the fact that each State administered its own legislation. The Commonwealth government was responsible for Aboriginal people in the Northern Territory, while State laws differed widely in the degree of control they exercised over their original inhabitants. This led to many disparities. Definitions of "Aborigine" varied, minimum wage rates differed and restrictions on liquor which were imposed on Aboriginal communities were not uniform."

Aboriginal Customary Law in Australia
There is no generally accepted definition of what constitutes Aboriginal customary law, not least because, it is almost impossible to describe comprehensively. There is secrecy surrounding many of the laws, some of which are “sacred and not to be spoken about to anyone”, except the members of the relevant tribal group. Tribal laws differ from community to community. Information obtained from one Aboriginal tribe would not include information about the laws of another tribe as they would not be permitted to speak about those other laws. A universal definition cannot be formulated by generalising from a sample description.
Further, Aboriginal laws are part of an oral culture, handed down from generation to generation by word of mouth.18 There is no written code or statement of customary laws. Aboriginal law was encoded in each group’s religious tradition. This fusion of law and religion in Aboriginal culture gives rise to its own obstacle to defining that law. Eggleston has identified the difficulty in the following terms:
Law and religion were intimately bound up in Aboriginal society ... and any attempt to identify certain segments of Aboriginal life as “legal” involves the imposition of alien categories of thought on the tribal society. Some modern Aborigines have made comparisons between their law and the Australian legal system on the basis of common notions of rules and sanctions for their breach but they have also interpreted the word “law” to mean “way of life” and “religion” ... This is not to deny that there was a system of “law” in traditional Aboriginal society. I am using a functional definition of “law”, one which places primary emphasis on law as a means of social control ... The use of the word “law” to describe measures of social control in Aboriginal society is justified ... by the belief that every society must have means for settling disputes, and must have law in this sense, no matter how difficult it might be to identify binding rules or institutions corresponding to the legal system in our own society.

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Australia - National Park - Media Briefing Uluru-Kata Tjuta National Park was inscribed on the World Heritage List in two stages, initially for its outstanding universal natural values and then for its outstanding universal cultural values. An important task in the management of the Park is maintaining and respecting local indigenous culture while accommodating the interests of non-Aboriginal people. While we understand that visitors and people in business want to use the Park, Parks Australia has obligations to protect local Aboriginal law and lifestyle and the integrity of the World Heritage natural and cultural values of the park.

'''Aboriginal Art and Customary Law'''
Art and law are very interwoven in Australian Aboriginal cultures. These videos give some idea of how complex Aboriginal Tribal Law is and how it works with and is in conflict with common law. []
CrossArtProjects : An exhibition of the works of MulkinWirrpanda! Series produced by Jo Holder. Photographed by Colin Adams.

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David Dalrymple, lawyer, speaks on the Northern Territory Intervention and the importance of customary law in sentencing.

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David Dalrymple, lawyer speaks on the Northern Territory Intervention and the importance of customary law in sentencing!

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The history of Mulkuns Grandfather! Marion Scrymgour

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Senior artist Mulkun Wirrpanda asks upcoming artist Wukun Wanambi to reply on her behalf. Senior artist Galuma Maymuru also in attendance.

A PDF file about customary law: http://www.cscsarchive.org/dataarchive/textfiles/textfile.2008-07-22.9145923915/file

The Australian Legal System
Worksheets on the seperation of powers, the constitution, the courts, how laws are made and Commonwealth and State laws all function today..


2 comments:

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Venu Venu said...


Thank you for sharing this knowledge in a blogpost

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