Search results for: judicial life tenure

Authors: Jonathan R. Olsen, Natalie Nicholls, Jenna Panter, Hannah Burnett, Michael Tornow, Richard Mitchell

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The 20-minute neighborhood is a policy priority for governments worldwide and a key feature of this policy is providing access to natural space within 800 meters of home. The study aims were to (1) examine the association between distance to nearest natural space and frequent use over time and (2) examine whether frequent use and changes in use were patterned by income and housing tenure over time. Bi-annual Scottish Household Survey data were obtained for 2013 to 2019 (n:42128 aged 16+). Adults were asked the walking distance to their nearest natural space, the frequency of visits to this space and their housing tenure, as well as age, sex and income. We examined the association between distance from home of nearest natural space, housing tenure, and the likelihood of frequent natural space use (visited once a week or more). Two-way interaction terms were further applied to explore variation in the association between tenure and frequent natural space use over time. We found that 87% of respondents lived within 10 minute walk of a natural space, meeting the policy specification for a 20-minute neighbourhood. Greater proximity to natural space was associated with increased use; individuals living a 6 to 10 minute walk and over 10 minute walk were respectively 53% and 78% less likely to report frequent natural space use than those living within a 5 minute walk. Housing tenure was an important predictor of frequent natural space use; private renters and homeowners were more likely to report frequent natural space use than social renters. Our findings provide evidence that proximity to natural space is a strong predictor of frequent use. Our study provides important evidence that time-based access measures alone do not consider deep-rooted socioeconomic variation in use of Natural space. Policy makers should ensure a nuanced lens is applied to operationalising and monitoring the 20-minute neighbourhood to safeguard against exacerbating existing inequalities.

Keywords: natural space, housing, inequalities, 20-minute neighbourhood, urban design

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Authors: Charles A. Khamala

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In 2003, constrained by an absent “rule of law culture” and negative economic growth, the new Kenyan government chose to pursue incremental judicial reforms rather than comprehensive constitutional reforms. President Mwai Kibaki’s first administration’s judicial reform strategy was two pronged. First, to implement unprecedented “radical surgery,” he appointed a new Chief Justice who instrumentally recommended that half the purportedly-corrupt judiciary should be removed by Presidential tribunals of inquiry. Second, the replacement High Court judges, initially, instrumentally-endorsed the “radical surgery’s” administrative decisions removing their corrupt predecessors. Meanwhile, retention of the welfare-reducing Constitution perpetuated declining public confidence in judicial institutions culminating in refusal by the dissatisfied opposition party to petition the disputed 2007 presidential election results, alleging biased and corrupt courts. Fatefully, widespread post-election violence ensued. Consequently, the international community prompted the second Kibaki administration to concede to a new Constitution. Suddenly, the High Court then adopted a non-instrumental interpretation to reject the 2003 “radical surgery.” This paper therefore critically analyzes whether the Kenyan court’s inconsistent interpretations–pertaining to the constitutionality of the 2003 “radical surgery” removing corruption from Kenya’s courts–was predicated on political expediency or human rights principles. If justice “must also seen to be done,” then pursuit of the CJ’s, Judicial Service Commission’s and president’s political or economic interests must be limited by respect for the suspected judges and magistrates’ due process rights. The separation of powers doctrine demands that the dismissed judges should have a right of appeal which entails impartial review by a special independent oversight mechanism. Instead, ignoring fundamental rights, Kenya’s new Supreme Court’s interpretation of another round of vetting under the new 2010 Constitution, ousts the High Court’s judicial review jurisdiction altogether, since removal of judicial corruption is “a constitutional imperative, akin to a national duty upon every judicial officer to pave way for judicial realignment and reformulation.”

Keywords: administrative decisions, corruption, fair hearing, judicial review, (non) instrumental

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Authors: Mohd Sarfaraz

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The objective of this study is to investigate the work-life balance and job satisfaction among women employees in a hospital in India. It is believed that balancing a successful career with a family life or personal life can be challenging. WLB impacts on persons' satisfaction in their work and personal life roles. For this purpose, a questionnaire is developed with 22 items. The data collected from women employees who are working in a hospital in Aligarh, India. The constructs considered in this study include WLB and job satisfaction. The demographic and organisational variables considered in the study are genders, age and tenure of the job. Factors of WLB are flexible working conditions, work-life balance programs, and employee intention to change/leave a job, work pressure/stress and long working hours. This paper examines the relationship between work-family conflict, policies, and job and life satisfaction. Appropriate statistical tool using SPSS will be applied to achieve the objective. The anxiety over work-life balance is progressively becoming a common talk, especially for female employees.Increasing demands from the work and family domains represent a high strain for employees which even lead to the health problems among employees. Although it is believed that work-family role strain is more common among women employees. Therefore, the study will focus on these issues of WLB and job satisfaction among female professionals.

Keywords: work-life balance, job satisfaction, work- family conflict, health

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Authors: Caroline Foulquier-Expert

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In many states around the world, actions to improve judicial ethics are developing significantly through the production of professional standards for judges. The quest to improve the ethics of judges is legitimate. However, as this development tends to be very important at the moment, some risks it presents must be highlighted. Indeed, if the objective of improving Judges’ Ethics is legitimate, it can also lead to banalization of justice, reinforcement of criticism against the judiciary and to broach incidentally the question of the limits of judgment, which is most perilous for the independence of the judiciary. This research, based on case studies, interviews with judges and an analysis of the literature on this topic (mainly from the United States of America and European Union Member States), tends to draw attention to the fact that the result of the development of these professional standards is that the ethical requirements of judges become ethical requirements of justice, which is an undesirable effect of which we must be aware, in order to prevent it.

Keywords: judicial ethics, codes of conduct, independence, limits of judgment

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Authors: Joel S. Akintayo, Ramat T. Salman

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The stakeholders’ pressure on corporate managers to maintain firm’s profitability has created economic incentives for management to engage in earnings management practices. Therefore, this study examines the effects of audit quality and corporate governance on earnings management of quoted deposit money banks (DMBs) in Nigeria. This study specifically investigates the influence of audit tenure, audit fee, board independence, and board size on earnings management of DMBs. Explanatory research design was employed in carrying out the study while secondary data were sourced from the annual reports and accounts of all the 15 quoted DMBs in Nigerian Stock Exchange as at December 31, 2015 for a period of 10 years covering from 2006 to 2015. The data obtained for the study were analyzed using panel regression analysis approach. The findings reveal that board independence has a negative significant effect on earnings management at a 5% level of significance (p=0.002), while audit fee has a positive significant effect on earnings management at a 5% level of significance (p=0.013) and audit tenure has a negative significant effect on earnings management of DMBs at a 5% level of significance (p=0.003). Surprisingly, board size was statistically not significant at a 5% level of significance (p=0.086). The study concludes that high audit quality and sound corporate governance could improve the earnings quality of DMBs. Hence, the study recommends that the authorities saddled with the responsibility of banking supervision in Nigeria such the Securities and Exchange Commission (SEC) and CBN to advise the National Assembly in Nigeria to pass into law the three years professional requirement for audit tenure.

Keywords: audit quality, audit tenure, audit fee, board independence, corporate governance, earnings management

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Authors: Muhammad Umer Toor, Syed Imran Haider, Babar Afzaal

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Brexit nudged the British executive towards overriding parliamentary sovereignty in the UK. In 2019, Prime Minister Boris Johnson sought to prorogue parliament to prevent it from debating withdrawal from the UK. In 2022, Pakistan's Prime Minister also tried to nullify the ability of parliament to vote on the constitutional mechanism of a no-confidence vote. In both cases, the apex courts intervened and restored the supremacy of Parliament, averting constitutional crises. This paper examines the legitimacy and power of said courts to intervene in sensitive political and constitutional questions. The research focuses on the administrative law area of judicial review. It examines how in UK and Pakistan practice of judicial review helps mediate constitutional deadlocks between institutions comparatively. This is secondary research employing qualitative, comparative, doctrinal, and analytical methodologies to research a specific area of law from two jurisdictions, using primary and secondary sources.

Keywords: administrative law, judicial review, law, constitutional law

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Authors: Nur Fareza Mustapha

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Solutions to policy problems need to be curated to the local context, taking into account the trajectory of the local development path to ensure its efficacy. For Kuala Lumpur, rapid urbanization and migration into the city for the past few decades have increased the demand for housing to accommodate a growing urban population. As a critical factor affecting housing affordability, land supply constraints have been attributed to intensifying market pressures, which grew in tandem with the demands of urban development, along with existing institutional constraints in the governance of land. While demand-side pressures are inevitable given the fixed supply of land, supply-side constraints in regulations distort markets and if addressed inappropriately, may lead to mistargeted policy interventions. Given Malaysia’s historical development, regulatory barriers for land may originate from the British colonial period, when many aspects of the current laws governing tenure were introduced and formalized, and henceforth, became engrained in the system. This research undertakes a postcolonial institutional analysis approach to uncover the causal mechanism driving the evolution of land tenure systems in post-colonial Kuala Lumpur. It seeks to determine the sources of these shifts, focusing on the incentives and bargaining positions of actors during periods of institutional flux/change. It aims to construct a conceptual framework to further this understanding and to elucidate how this historical trajectory affects current access to urban land markets for housing. Archival analysis is used to outline and analyse the evolution of land tenure systems in Kuala Lumpur while stakeholder interviews are used to analyse its impact on the current urban land market, with a particular focus on the provision of and access to affordable housing in the city. Preliminary findings indicate that many aspects of the laws governing tenure that were introduced and formalized during the British colonial period have endured until the present day. Customary rules of tenure were displaced by rules following a European tradition, which found legitimacy through a misguided interpretation of local laws regarding the ownership of land. Colonial notions of race and its binary view of native vs. non-natives have also persisted in the construction and implementation of current legislation regarding land tenure. More concrete findings from this study will generate a more nuanced understanding of the regulatory land supply constraints in Kuala Lumpur, taking into account both the long and short term spatial and temporal processes that affect how these rules are created, implemented and enforced.

Keywords: colonial discourse, historical institutionalism, housing, land policy, post-colonial city

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Authors: Nandita Narayan

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In most constitutional democracies, courts have been the gatekeepers of fundamental rights. The task of determining whether a violation is in fact justified, therefore, is judicial. Any state action, legislative or administrative, has to be tested by the application of two standards – first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it will be struck down as unconstitutional or ultra vires. This paper seeks to analyse the varying standards of reasonableness adopted by the Supreme Court of India where there is a violation of fundamental rights by state action. This is sought to be done by scrutinising case laws and classifying the legality of the violation under one of three levels of judicial scrutiny—strict, intermediate, or weak. The paper concludes by proving that there is an irregularity in the standards adopted, thus resulting in undue discretionary power of the judiciary which strikes at the very concept of reasonableness and ultimately becomes arbitrary in nature. This conclusion is reached by the comparison of reasonableness review of fundamental rights in other jurisdictions such as the USA and Canada.

Keywords: constitutional law, judicial review, fundamental rights, reasonableness, India

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Authors: Oscar Sang, Shadrack David Rotich

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Parliamentary immunity is grounded on the notion that parliaments need certain rights or immunities to ensure they can operate independently make fair and impartial decisions without capitulating to political pressure or intimidation. The 2013 election in Kenya marked an important milestone in the development of the law of parliamentary privilege. Such importance relates to the dramatic increase in the number of legislatures in the country from one unicameral parliament, to a bicameral national parliament and forty-seven other regional legislative assemblies. The increase in legislatures has resulted in a dramatic increase in political contestations which have led to legal wrangles. The judiciary in Kenya, once considered submissive, has been invited to arbitrate on various matters pitting individual rights and parliamentary privilege and have invalidated a number of legislative action. While judicial intervention is indeed necessary to ensure that legislatures in Kenya live true to the constitutional aspirations of the Kenyan people, certain judicial decisions have had an effect on eroding parliamentary immunity. This paper highlights a number of instances in which it could be argued that parliamentary privilege came under attack by the courts in Kenya. The paper aims to make a case that while Kenya’s progressive constitution necessitates the scope and extent of legislature’s immunities and privilege to be determined by the courts, it is important that courts exercise restraint in its review of legislative action. The paper makes the argument that unrestrained judicial action in Kenya on questions within the realm parliamentary privilege may undermine the functioning of Kenya’s legislatures. The paper explores approaches taken by a number of jurisdictions in establishing a proper balance between maintaining a viable parliamentary privilege regime in a rights-based constitutional system.

Keywords: Kenya, constitution, judicial restraint, parliamentary privilege

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Authors: Sonia Mannan, M. Jobair Alam

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The concept of palliative care in Bangladesh largely remained limited to the sympathetic caring of patients with a life-limiting illness. Quality of Life (QoL) issues are rarely practiced in Bangladesh. Furthermore, palliative medicine, in the perspective of holistic palliative care service, does not have its proper recognition in Bangladesh. Apart from those socio-medical aspects, palliative care patients face legal issues that impact their quality of life, including access to health services and social benefits and dealing with other life-transactions of the patients and their families (such as disposing of property; planning for children). This paper is an attempt to articulate these legal dimensions of the right to palliative care in the context of Bangladesh. The major focus of this paper will be founded on the doctrinal analysis of the constitutional provisions and other relevant legislation on the right to health and their judicial interpretation, which is argued to offer a meaningful space for the right to palliative care. This paper will also investigate the gaps in the said legal framework to better secure such care. In conclusion, a few recommendations are made so that the palliative care practices in Bangladesh are better aligned with international standards, and it can respond more humanely to the patients who need palliative care.

Keywords: Bangladesh, constitution, legal regime, palliative care, quality of life

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Authors: Isabel Acero, Nuria Alcalde

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The economic crisis and notorious corporate scandals have caused social indignation and sparked the debate concerning the underlying rationality of the compensation that directors receive. In this context, this study examines the determinants of the remuneration of directors in listed Spanish companies using individualized data. A multilevel methodology appropriate for this type of data has been used that allows us to differentiate between inter-company variations and intra-company variations. The results show that company size is the variable (at the company level) that exerts the greatest influence on the level of director´s compensation. One surprising finding is that the presence of independent directors on the board has a positive influence on remuneration. At the individual level, tenure and experience have a significant influence on the level of compensation, while the director´s level of education does not appear to have an effect on it.

Keywords: board of directors, compensation, experience, multilevel, tenure

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Authors: Olubunmi Kolawole

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This study explored how certain organizational antecedents like work environment, and individual antecedents (e.g. job level and tenure) could affect employees empowerment in the hospitality industry. A total of 200 valid responses from a survey conducted in 10 hotels in Lagos Nigeria were received. Data were analyzed using frequency distribution and percentage analysis. Findings suggest that leadership, work environment, as well as tenure and level in the organization are reliable predictors of employees empowerment in Nigeria's hotel sector. Empowerment is a major factor which determines how employees feel about themselves and their jobs. The study concluded that organizations need to learn that an empowered employee will put in superior performance which would positively impact on the organization.

Keywords: employee empowerment, hospitality industry, individual-level antecedents, leadership, organizational antecedents

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Authors: Daniela Piana

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This work casts light on what lies underneath the rule of law. In order to do so it unfolds the arguments in three main steps. The first one is a pars destruens: the mainstreaming scholarship on judicial independence and judicial accountability is questioned under the large amount of data we have at our disposal (this step is accomplished in the first two paragraphs). The second step is the reframe of the concept of the rule of law and the consequent rise of a hidden dimension, which has been so far largely underexplored: responsiveness. The third step consists into offering the readers empirical support and drawing thereby consequences in terms of policy design and citizens engagement into the rule of law implementation (these two steps are accomplished in the third paragraph).

Keywords: rule of law, accountability, trust, citizens

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Authors: João Pedro Albino, Ana Cláudia Pires Ferreira de Lima

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Humanity has undergone a transformation from the physical to the virtual world, generating an enormous amount of data on the world wide web, known as big data. Many facts that occur in the physical world or in the digital world are proven through records made on the internet, such as digital photographs, posts on social media, contract acceptances by digital platforms, email, banking, and messaging applications, among others. These data recorded on the internet have been used as evidence in judicial proceedings. The identification of internet users is essential for the security of legal relationships. This research was carried out on scientific articles and materials from courses and lectures, with an analysis of Brazilian legislation and some judicial decisions on the request of static data from logs and Internet Protocols (IPs) from application and connection providers. In this article, we will address the determination of authorship of data processing on the internet by obtaining the IP address and the appropriate judicial procedure for this purpose under Brazilian law.

Keywords: IP address, digital forensics, big data, data analytics, information and communication technology

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Authors: Antonio Sepúlveda, Camila Marques, Carlos Bolonha, Igor De Lazari, Henrique Rangel

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The judicial practice faces a tension between normative discretion and institutional capacities. There are clarity graduations of the statutory text that might induce different specialization levels of the judges. A major problem stemming from that tension is a greater discretion without a proportional specialization. The normative clarity, although its absence can be overcome through specialization, avoids problems related to disproportionate discretion and judicial dissonance. When judicial interpretation deals with the lack of legal clarity, a significant juridical insecurity frame is verified. Decisional uniformity mechanisms are created in order to surpass these problems. Brazil brings great examples, such as the súmulas, the enunciados, and the súmulas vinculantes. Despite of the resistance presented to the latter, mainly based on judges’ independence, even countries of the Common Law tradition develop such mechanisms. The British Guidelines face the lack of legal clarity problem and promote a decisional consonance system.

Keywords: generalist judges, institutional capacities, normative clarity, normative discretion

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Authors: Desta Brhanu Gebrehiwot

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The study aims to investigate the impact of land tenure arrangements on fertilizer use per hectare in Northern Ethiopia. Household and Plot level data are used for analysis. Land tenure contracts such as sharecropping and fixed rent arrangements have endogeneity. Different unobservable characteristics may affect renting-out decisions. Thus, the appropriate method of analysis was the instrumental variable estimation technic. Therefore, the family of instrumental variable estimation methods two-stage least-squares regression (2SLS, the generalized method of moments (GMM), Limited information maximum likelihood (LIML), and instrumental variable Tobit (IV-Tobit) was used. Besides, a method to handle a binary endogenous variable is applied, which uses a two-step estimation. In the first step probit model includes instruments, and in the second step, maximum likelihood estimation (MLE) (“etregress” command in Stata 14) was used. There was lower fertilizer use per hectare on sharecropped and fixed rented plots relative to owner-operated. The result supports the Marshallian inefficiency principle in sharecropping. The difference in fertilizer use per hectare could be explained by a lack of incentivized detailed contract forms, such as giving more proportion of the output to the tenant under sharecropping contracts, which motivates to use of more fertilizer in rented plots to maximize the production because most sharecropping arrangements share output equally between tenants and landlords.

Keywords: tenure-contracts, endogeneity, plot-level data, Ethiopia, fertilizer

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Authors: Yi Yang

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In the era of 'Internet plus', the rapid development of webcast has posed new challenges to the intellectual property law. Meanwhile, traditional copyright protection has also exposed the existing theoretical imbalance in webcast. Through the analysis of the outstanding problems in the copyright protection of the network live broadcast, this paper points out that the main causes of the problems are the unclear nature of the copyright of the network live broadcast, the copyright protection system of the game network live broadcast has not yet been constructed, and the copyright infringement of the pan entertainment live broadcast is mostly, and so on. Based on the current practice, this paper puts forward the specific thinking of the protection path of online live broadcast copyright. First of all, to provide a reasonable judicial solution for a large number of online live copyright cases, we need to integrate the right scope and regulatory behavior of broadcasting right and information network communication right. Secondly, in order to protect the rights of network anchors, the webcast should be regarded as works. Thirdly, in order to protect the copyright of webcast and prevent the infringement of copyright by webcast, the webcast platform will be used as an intermediary to provide solutions for solving the judicial dilemma. In the era of 'Internet plus', it is a theoretical attempt to explore the protection and method of copyright protection on webcast, which has positive guiding significance for judicial practice.

Keywords: 'Internet Plus' era, webcast, copyright, protection dilemma

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Authors: Bellinda R. Chinowawa

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As part of a wider strategy to stifle civil society, Governments routinely resort to judicial harassment through the use of civil and criminal to impugn the integrity of human rights defenders and that of perceived political opponents. This phenomenon is rife in militarised or autocratic regimes where there is no tolerance for dissenting voices. Zimbabwe, ostensibly a presidential republic founded on the values of transparency, equality, freedom, is characterised by brutal suppression of perceived political opponents and those who assert their basic human rights. This is done through a wide range of tactics including unlawful arrests and detention, torture and other cruel, inhuman degrading treatment and enforced disappearances. Professionals including, journalists and doctors are similarly not spared from state attack. For human rights defenders, the most widely used tool of repression is that of judicial harassment where the judicial system is used to persecute them. This can include the levying of criminal charges, civil lawsuits and unnecessary administrative proceedings. Charges preferred against range from petty offences such as criminal nuisance to more serious charges of terrorism and subverting a constitutional government. Additionally, government sponsored individuals and organisations file strategic lawsuits with pecuniary implications order to intimidate and silence critics and engender self-censorship. Some HRDs are convicted and sentenced to prison terms, despite not being criminals in a true sense. While others are acquitted judicial harassment diverts energy and resources away from their human rights work. Through a consideration of statistical data reported by human rights organisations and face to face interviews with a cross section of human rights defenders, the article will map the incidence of judicial harassment in Zimbabwe. The article will consider the multi-level sociological and contextual factors which influence the Government of Zimbabwe to have easy recourse to criminal law and the debilitating effect of these actions on HRDs. These factors include the breakdown of the rule of law resulting in state capture of the judiciary, the proven efficacy of judicial harassment from colonial times to date, and the lack of an adequate redress mechanism at international level. By mapping the use of the judiciary as a tool of repression, from the inception of modern day Zimbabwe to date, it is hoped that HRDs will realise that they are part of a greater community of activists throughout the ages and should emboldened in the realisation that it is an age old tactic used by fallen regimes which should not deter them from calling for accountability.

Keywords: autocratic regime, colonial legacy, judicial harassment, human rights defenders

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Authors: Le Bich Thuy

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A trust is an alien notion in Vietnamese law until 2021, which not only dissatisfies the practical demands of the nation’s civilians but also results in some detrimental shortcomings. The Judicial Case Law No 2 to be applied in adjudicating subsequent cases is a typical example of such negative consequences, implying a need for an application of trust law into Vietnam’s legal system. This paper first presents the similarity in nature between parties’ relationship in the mentioned case and a proprietary trust relationship, followed by an analysis of such a case from a trusted perspective. Subsequently, an introduction of potential obstacles hindering the introduction of trust law into the Vietnamese legal framework is presented. Finally, some implications are suggested for perfecting Vietnam’s legal system.

Keywords: Vietnamese case law no 2, trust law, private property management, patrimony

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Authors: Behnam Habibi Dargah

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The economics of cost-benefit theory seeks to monitor claims and determine their final price. The cost of litigation is important because it is a measure of the efficiency of the justice system. From an economic point of view, the cost of litigation is considered to be the point of equilibrium of litigation, whereby litigation is regarded as a high-risk investment and is initiated when the costs are less than the probable and expected benefits. Costs are economically separated into private and social costs. Private cost includes material (direct and indirect) and spiritual costs. The social costs of litigation are also subsidized-centric due to the public and governmental nature of litigation and cover both types of bureaucratic bureaucracy and the costs of judicial misconduct. Macroeconomic policy in the economics of justice is the reverse engineering of controlling the social costs of litigation by employing selective litigation and working on the judicial culture to achieve rationality in the monopoly system. Procedures for controlling and managing court costs are also circumscribed to economic patterns in the field. Rational cost allocation model and cost transfer model. The rational allocation model deals with cost-tolerance systems, and the transfer model also considers three models of transferability, including legal, judicial and contractual transferability, which will be described and explored in the present article in a comparative manner.

Keywords: cost of litigation, economics of litigation, private cost, social cost, cost of litigation

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Authors: Paulo Lopes Henriques, Carla Curado

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According to literature, knowledge sharing behaviors are influenced by organizational values and structures, namely organizational climate. The manuscript examines the antecedents of the knowledge sharing oriented organizational climate. According to theoretical expectations the study adopts the following explanatory conditions: knowledge sharing costs, knowledge sharing incentives, perceptions of knowledge sharing contributing to performance and tenure. The study confronts results considering two groups of firms: nondigital (firms without intranet) vs digital (firms with intranet). The paper applies fsQCA technique to analyze data by using fsQCA 2.5 software (www.fsqca.com) testing several conditional arguments to explain the outcome variable. Main results strengthen claims on the relevancy of the contribution of knowledge sharing to performance. Secondly, evidence brings tenure - an explanatory condition that is associated to organizational memory – to the spotlight. The study provides an original contribution not previously addressed in literature, since it identifies the sufficient conditions sets to knowledge sharing oriented organizational climate using fsQCA, which is, to our knowledge, a novel application of the technique.

Keywords: fsQCA, knowledge sharing oriented organizational climate, knowledge sharing costs, knowledge sharing incentives

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Authors: Mujeeb Saif Mohsen Al-Absy, Ku Nor Izah Ku Ismail, Sitraselvi Chandren

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This study examines whether corporate governance (CG) mechanisms in firms that have a whistle-blowing policy (WHBLP) are more effective in constraining earnings management (EM), than those without. A sample of 288 Malaysian firms for the years 2013 to 2015, amounting to 864 firm-years were grouped into firms with and without WHBLP. Results show that for firms without WHBLP, the board chairman tenure would minimize EM activities. Meanwhile, for firms with WHBLP, board chairman independence, board chairman tenure, audit committee size, audit committee meeting and women in the audit committees are found to be associated with less EM activities. Further, it is found that ownership concentration and Big 4 auditing firms help to reduce EM activities in firms with WHBLP, while not in firms without WHBLP. Hence, functional and effective governance can be achieved by having a WHBLP, which is in line with agency and resource dependent theories. Therefore, this study suggests that firms should have a WHBLP in place, and policymakers should come up with enhanced criteria to strengthen the mechanisms of WHBLP.

Keywords: corporate governance, earnings management, whistle-blowing policy, audit committee, board of directors

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Authors: Jenny Paola Forero Pachón, Sonia Cristina Gamboa Sarmiento, Luis Carlos Gómez Flórez

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The Colombian government has defined an e-government strategy to take advantage of Information Technologies (IT) in order to contribute to the building of a more efficient, transparent and participative State that provides better services to citizens and businesses. In this regard, the Justice sector is one of the government sectors where IT has generated more expectation considering that the country has a judicial processes backlog. This situation has led to the search for alternative forms of access to justice that speed up the process while providing a low cost for citizens. To this end, the Colombian government has authorized the use of Alternative Dispute Resolution methods (ADR), a remedy where disputes can be resolved more quickly compared to judicial processes while facilitating greater communication between the parties, without recourse to judicial authority. One of these methods is conciliation, which includes a special modality that takes advantage of IT for the development of itself known as virtual conciliation. With this option the conciliation is supported by information systems, applications or platforms and communications are provided through it. This paper evaluates the level of maturity in how the service of virtual conciliation is under the framework of this strategy. This evaluation is carried out considering Shahkooh's 5-phase model for e-government. As a result, it is evident that in the context of conciliation, maturity does not reach the necessary level in the model so that it can be considered as virtual conciliation; therefore, it is necessary to define strategies to maximize the potential of IT in this context.

Keywords: alternative dispute resolution, e-government, evaluation of maturity, Shahkooh model, virtual conciliation

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: Aishwarya Pothula

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Euthanasia in India is a politically dormant policy issue in the sense that discussions around it are sporadic in nature (usually with developments in specific cases) and it stays as a dominant issue in the public domain for a fleeting period. In other words, it is a non-political issue that has been unable to successfully get on the policy agenda. This paper studies how the Supreme Court of India (SC) plays a role in euthanasia’s policy making. In 2011, the SC independently put a law in place that legalized passive euthanasia through its judgement in the Aruna Shanbaug v. Union of India case. According to this, it is no longer illegal to withhold/withdraw a patient’s medical treatment in certain cases. This judgement, therefore, is the empirical focus of this paper. The paper essentially employs two techniques of discourse analysis to study the SC’s system of argumentation. The two methods, Text Analysis using Gasper’s Analysis Table and Frame Analysis – are complemented by two discourse techniques called metaphor analysis and lexical analysis. The framework within which the analysis is conducted lies in 1) the judicial process of India, i.e. the SC procedures and the Constitutional rules and provisions, and 2) John W. Kingdon’s theory of policy windows and policy entrepreneurs. The results of this paper are three-fold: first, the SC dismiss the petitioner’s request for passive euthanasia on inadequate and weak grounds, thereby setting no precedent for the historic law they put in place. In other words, they leave the decision open for the Parliament to act upon. Hence the judgement, as opposed to arguments by many, is by no means an instance of judicial activism/overreach. Second, they define euthanasia in a way that resonates with existing broader societal themes. They combine this with a remarkable use of authoritative and protective tones/stances to settle at an intermediate position that balances the possible opposition to their role in the process and what they (perhaps) perceive to be an optimal solution. Third, they soften up the policy community (including the public) to the idea of passive euthanasia leading it towards a Parliamentarian legislation. They achieve this by shaping prevalent principles, provisions and worldviews through an astute use of the legal instruments at their disposal. This paper refers to this unconventional role of the SC as ‘judicial entrepreneurship’ which is also the first scholarly contribution towards research on euthanasia as a policy issue in India.

Keywords: argumentation analysis, Aruna Ramachandra Shanbaug, discourse analysis, euthanasia, judicial entrepreneurship, policy-making process, supreme court of India

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Authors: Mbuzeni Mathenjwa

Abstract:

Upon their independence, most African countries adopted constitutions that proclaim respect for the rule of law. The decision to constitutionalise the rule of law is basically informed by the countries’ experience during the colonial era which was characterised by discrimination on various grounds including race, gender and religion. Despite the promise to be bound by and adhere to the rule of law, disrespect for the rule of law has become a norm in the African continent. This is evident from the reported incidence of abuse of power, failure to perform obligations imposed by law and flagrant disregard of the law by the Executive including the heads of states in the continent. In some African countries including South Africa, the courts of law have been approached to rule on the legality of the decisions of the executives, taken contrary to the prescripts of the law. South African Courts have laid down a number of decisions wherein they found that the conduct of the executive contravenes the rule of law. Consequently decisions of the executive have been declared invalid by courts. In this regard courts have become a safety net in preserving the rule of law in. Accordingly, this paper discusses the role of the courts in preserving the rule of law in Africa. This it does by explaining the notion of judicial independence and the doctrine of the rule of law. The explanation on the notion of judicial independence is relevant because only an independent judiciary can effectively review and set aside the decision of the executive including the president of a country. Furthermore, a comparative overview of the enforcement of the rule of law in African countries is done. The methods used for this research is literature review, and study of legislation and case law in selected African countries relating to the independence of the judiciary and the rule of law. Finally, a conclusion is drawn on the role of the independent judiciary to preserve the rule of law in Africa.

Keywords: Africa, constitutions, independence, judiciary

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Authors: Masnur Marzuki

Abstract:

As in other democratic countries, the constitutional court of Indonesia has the role of interpreting and applying the Constitution in order to preserve its supremacy testing the constitutionality of statutes. With its strong power to enforce and guard the Constitution, the court is now challenged to provide people an opportunity to understand their constitutional rights close up. At the same time, the court has built up an enviable reputation among constitutional courts in new democracies for the technical quality of its legitimacy in the legal sense. Since its establishment in 2003, the Constitutional Court of Indonesia has decided more than 190 statutes in judicial review case. It has been remarkably successful to make a credible start on its work of guarding the Constitution. Unsurprisingly, many argue that the Court has elevated Indonesia’s democracy to a whole new level. In accomplishing its roles judicial review, the basic principle that can be identified is that the Constitutional Court must always be subordinated to the Constitution. It is not being allowed to invade the field of the legislator. In doing so, the court does not have any discretionary political basis in order to create legal norms or provisions that could not be deducted from the Constitution itself. When interpreting a statute “in accordance with the constitution”, the court recognizes and reasserts that it is strictly forbidden to extend the scope of a legal provision in such a way that would create a general norm not established by the law-maker. This paper aims to identify and assess the latest role of Indonesian Constitutional Court in interpreting and applying the Constitution. In particular, it questions 1) the role of the Constitutional Court in judicial review; and 2) the role of the court to assist the legislators in the accomplishment of their functions in order to preserve its supremacy testing the constitutionality of statutes. Concerning positive legislator, jurisprudential and judicial review theories will be approached. The empirical part will include qualitative and comparative research. Main questions to be addressed: Can the Constitutional Court be functionalized as positive legislator? What are the criteria for conducting role of Constitutional Courts as Positive Legislators and how can it be accepted? Concerning the subordination of Constitutional Courts to the Constitution and judicial review, both qualitative and quantitative methods will be used, and differences between Indonesia and German Constitutional Court will be observed. Other questions to be addressed: Can Constitutional Courts have any discretionary political basis in order to create legal norms or provisions that could not be deducted from the Constitution itself. Should the Constitutional Court always act as a negative legislator? However, the Constitutional Court in Indonesia has played role as positive legislators which create dynamic of Indonesian legal development. In performing the task of reviewing the constitutionality of statutes, the Constitutional Court has created legal norms or provisions that could be deducted from the Constitution itself.

Keywords: constitution, court, law, rights

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Authors: Rainner Roweder

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Theme: The present paper aims to analyze the specificity of the judicial evidence linked to the subjects of dignity and personality rights, otherwise known as moral rights, in the determination of the truth and formation of the judicial reasoning in cases concerning these areas. This research is about the way courts in Brazilian domestic law search for truth and handles evidence in cases involving moral rights that are abundant and important in Brazil. The main object of the paper is to analyze the effectiveness of the evidence in the formation of judicial conviction in matters related to morally controverted rights, based on the Brazilian, and as a comparison, the Latin American legal systems. In short, the rights of dignity and personality are moral. However, the evidential legal system expects a rational demonstration of moral rights that generate judicial conviction or persuasion. Moral, in turn, tends to be difficult or impossible to demonstrate in court, generating the problem considered in this paper, that is, the study of the moral demonstration problem as proof in court. In this sense, the more linked to moral, the more difficult to be demonstrated in court that right is, expanding the field of judicial discretion, generating legal uncertainty. More specifically, the new personality rights, such as gender, and their possibility of alteration, further amplify the problem being essentially an intimate manner, which does not exist in the objective, rational evidential system, as normally occurs in other categories, such as contracts. Therefore, evidencing this legal category in court, with the level of security required by the law, is a herculean task. It becomes virtually impossible to use the same evidentiary system when judging the rights researched here; therefore, it generates the need for a new design of the evidential task regarding the rights of the personality, a central effort of the present paper. Methodology: Concerning the methodology, the Method used in the Investigation phase was Inductive, with the use of the comparative law method; in the data treatment phase, the Inductive Method was also used. Doctrine, Legislative, and jurisprudential comparison was the technique research used. Results: In addition to the peculiar characteristics of personality rights that are not found in other rights, part of them are essentially linked to morale and are not objectively verifiable by design, and it is necessary to use specific argumentative theories for their secure confirmation, such as interdisciplinary support. The traditional pragmatic theory of proof, for having an obvious objective character, when applied in the rights linked to the morale, aggravates decisionism and generates legal insecurity, being necessary its reconstruction for morally charged cases, with the possible use of the “predictive theory” ( and predictive facts) through algorithms in data collection and treatment.

Keywords: moral rights, proof, pragmatic proof theory, insufficiency, Brazil

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Authors: Michael Daly

Abstract:

Background/Aims: The interplay of childhood self-control and early life social background in predicting adult health is currently unclear. We drew on rich data from two large nationally representative cohort studies to test whether individual differences in childhood self-control may: (i) buffer the health impact of social disadvantage, (ii) act as a mediating pathway underlying the emergence of health disparities, or (iii) compensate for the health consequences of socioeconomic disadvantage across the lifespan. Methods: We examined data from over 25,000 participants from the British Cohort Study (BCS) and the National Child Development Study (NCDS). Child self-control was teacher-rated at age 10 in the BCS and ages 7/11 in the NCDS. The Early life social disadvantage was indexed using measures of parental education, occupational prestige, and housing characteristics (i.e. housing tenure, home crowding). A range of health outcomes was examined: the presence of chronic conditions, whether illnesses were limiting, physiological dysregulation (gauged by clinical indicators), mortality, and perceptions of pain, psychological distress, and general health. Results: Childhood self-control and social disadvantage predicted each measure of adult health, with similar strength on average. An examination of mediating factors showed that adult smoking, obesity, and socioeconomic status explained the majority of these linkages. There was no systematic evidence that self-control moderated the health consequences of early social disadvantage and limited evidence that self-control acted as a key pathway from disadvantage to later health. Conclusions: Childhood self-control predicts adult health and may compensate for early life social disadvantage by shaping adult health behaviour and social status.

Keywords: personality and health, social disadvantage, health psychology, life-course development

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Authors: Emrah Denizhan

Abstract:

Policing studies have drawn attention to the changing role of law enforcement in favour of harsh policing strategies throughout the world. Turkey has become part of this global transition process by restructuring its policing through a series of allegedly democratic amendments to Turkish law. Nevertheless, severe violations of human rights continue to be widely experienced phenomena. This paper suggests problematizing the changing judicial framework of policing together with the persistent aggressive policing in Turkey, by considering Agamben's concept of police as a sovereign entity – sovereign police. In so doing, the paper analytically dissects sovereign police into three premises: the criminalization of the (perceived) enemy, the militarization of the police, and finally, the discretionary use of force. This examination of the state’s early ethno-racial policies and the history of the Turkish police force, and of the changing judicial framework of police-related laws in the 2000s, demonstrates that certain ‘internal enemies’ have been criminalized by increasingly militarized police using escalating discretionary use of force.

Keywords: criminalization, discretionary use of force, policing, sovereignty

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