Search results for: the Constitutional Court of Romania

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: 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: Phutthiwat Waiyawuththanapoom

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This research is objected to study the pattern and channel of distribution of Ang Thong’s court doll OTOP product and try to develop the quality of distribution of the court doll product. The population of this research is 50 court doll manufacturers of Ang Thong’s court doll. The data and information was collected by using the questionnaire and use percentage, mean and standard deviation as an analysis tools. The distribution channel of Ang Thong’s court doll can be separated into 3 channels which are direct distribution from the manufacturer, via the middleman and via the co-operated manufacturing group. In the direct distribution from the manufacturer channel, it was found that the manufacturer is given the highest rate of importance to how they keep the inventory. In the distribution via the middleman channel, it was found that the manufacturer is given the highest rate of importance to the distribution efficiency. But in the distribution via the co-operated manufacturing group, it was found that the manufacturer is given the highest rate of importance to the public relationship.

Keywords: distribution, court doll, Ang Thong province, business and social sciences

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Authors: Joseph Ignagni, Rebecca Deen

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In this study, the decision making of the Justices of the United States Supreme Court will be considered in terms of constrained maximization and cognitive-cybernetic theory. This paper will integrate research in such fields as law, psychology, political science, economics and decision-making theory. It will be argued that due to its heavy workload, the Supreme Court may be forced to make decisions in a boundedly rational manner. The ideas and theory put forward here will be considered in the area of the Court’s decisions involving religion. Therefore, the cases involving the U.S. Constitution’s Free Exercise Clause and Establishment Clause will be analyzed.

Keywords: bounded rationality, cognitive-cybernetic, US supreme court, religion

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Authors: Alasdair Stanton

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What makes for a good explanation? Twenty years after Wendt’s important treatment of constitution and causation, non-causal explanations (sometimes referred to as ‘understanding’, or ‘descriptive inference’) have become, if not mainstream, at least accepted within International Relations. This article proceeds in two parts: firstly, it examines closely Wendt’s constitutional claims, and while it agrees there is a difference between causal and constitutional, rejects the view that constitutional explanations lack temporality. In fact, this author concludes that a constitutional argument is only possible if it relies upon a more foundational, causal argument. Secondly, through theoretical analysis of the constitutional argument, this research seeks to delineate temporal and non-temporal ways of explaining within International Relations. This article concludes that while the constitutional explanation, like other logical arguments, including comparative, and counter-factual, are not truly non-causal explanations, they are not bound as tightly to the ‘real world’ as temporal arguments such as cause-effect, process tracing, or even interpretivist accounts. However, like mathematical models, non-temporal arguments should aim for empirical testability as well as internal consistency. This work aims to give clear theoretical grounding to those authors using non-temporal arguments, but also to encourage them, and their positivist critics, to engage in thoroughgoing empirical tests.

Keywords: causal explanation, constitutional understanding, empirical, temporality

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Authors: Maria Ashitko

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The Constitution of the Republic of Belarus is based on the principle of the unity of rights and obligations, including those of the child. The constitutional status of the child is aspecific system of constitutional elements established and guaranteed by the state through the current legislation and regulatory acts that ensure the special legal status of the child, his or her constitutional legal capacity, implementation of the principles of the constitutional and legal status of the child, constitutional rights of the child and their safeguards. Under the principles of the constitutional status of the child, we consider the general, normative, social-volitional rules of behavior established by the Constitution of the Republic of Belarus, laws and other regulatory acts that determine the content and social purpose of the legal status of the child. The constitutional and legal status of the child is characterized by the following special principles, which form a feature of the state legal system:1) Ensuring the interests of the child means providing for the child in accordance with his or her age, state of health, characteristics of development, life experience, family life, cultural traditions, ethnicity. 2) The principle of equal responsibility of both parents or their substitutes characterized by caring for the next generation as one of the priority tasks of the state and society, and all issues related to the implementation of children’s rights should be addressed at the constitutional level. 3) We would like to highlight such a special principle as the subprinciple of safeguards, which is the principle of ensuring the safety of the child. It is also worth noting that in legal studies, there is no relationship between safety and constitutional rights as general safeguards of individual rights and freedoms, and as special safeguards for the right to life. 4) The principle of justice is expressed by the fact that in modern conditions, the quality of life is determined not only by material wealth but also by the ability of the state to ensure the harmonization of social relations and social harmony on the basis of humanism and justice. Thus, the specificity of the constitutional status of the child is the age boundary between adulthood and minority; therefore, we propose to highlight the age characteristics of the child as an additional element. It is advisable to highlight such a special principle as the subprinciple of safeguards, which is the principle of ensuring the safety of the child.

Keywords: children’s rights, constitutional status, constitutional principles, constitutional rights

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Authors: Valentina Dotto

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Climate change cases used to take the form of statutory disputes rather than constitutional or common law disputes. This changed in 2015, with the Urgenda Climate case in the Netherlands (Urgenda Foundation v. The State of the Netherlands, C/09/456689/HAZA 13-1396) and, the Juliana case in the U.S. (United States v. U.S. District Court for District of Oregon, 17-71692, 9th Cir.). The two cases represent a new type of climate litigation, the claims brought against the federal government were in fact grounded in constitutional rights. The complaints used the Doctrine of Public Trust as a cornerstone for the lawsuits asserting that government's actions against climate change failed to protect essential public trust resources; thus, violating a generation's constitutional rights to life, liberty, and property. The Public Trust Doctrine –a quintessentially American legal concept-, reserved to the States by virtue of the 9th and 10th amendment of the federal Constitution, gives them considerable jurisdiction over natural resources and has been refined by a number of Supreme Court rulings. The Juliana case exemplifies the Doctrine’s evolutionary nature because it attempts to apply it to the federal government, and establish a right to a climate system capable of sustaining human life as a fundamental right protected by a substantive due process. Furthermore, the flexibility of the Doctrine makes it permissible to be applied to a variety of different legal systems as in the Urgenda case. At the very heart of the lawsuits stands the question of who owns the Earth resources and, to what extent the general public can claim the services that the Earth provides as common property. By employing the widest possible definition of the Doctrine of Public Trust these lawsuits tried to redefine environmental resources as a collective right of all people. By doing case analysis, the paper explores how these cases can contribute to widening the public access to information and broadening the public voice in decision making as well as providing a precedent to equal access in seeking justice and redress from environmental failures.

Keywords: climate change, doctrine of public trust, environmental democracy, Juliana case, Urgenda climate case

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Authors: Henrique Rangel, Alexandre Fadel, Igor De Lazari, Bianca Neri, Carlos Bolonha

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This paper promotes a comparative analysis of American and Brazilian models of federalism assuming their levels of political centralization as main criterion. The central problem faced herein is the Brazilian approach of Unitarian regime. Although the hegemony of federative form after 1989, Brazil had a historical frame of political centralization that remains under the 1988 constitutional regime. Meanwhile, United States framed a federalism in which States absorb significant authorities. The hypothesis holds that the amount of alternative criteria of federalization – which can generate political centralization –, and the way they are upheld on judicial review, are crucial to understand the levels of political centralization achieved in each model. To test this hypothesis, the research is conducted by a methodology temporally delimited to 1994-2014 period. Three paradigmatic precedents of U.S. Supreme Court were selected: United States vs. Morrison (2000), on gender-motivated violence, Gonzales vs. Raich (2005), on medical use of marijuana, and United States vs. Lopez (1995), on firearm possession on scholar zones. These most relevant cases over federalism in the recent activity of Supreme Court indicates a determinant parameter of deliberation: the commerce clause. After observe the criterion used to permit or prohibit the political centralization in America, the Brazilian normative context is presented. In this sense, it is possible to identify the eventual legal treatment these controversies could receive in this Country. The decision-making reveals some deliberative parameters, which characterizes each federative model. At the end of research, the precedents of Rehnquist Court promote a broad revival of federalism debate, establishing the commerce clause as a secure criterion to uphold or not the necessity of centralization – even with decisions considered conservative. Otherwise, the Brazilian federalism solves them controversies upon in a formalist fashion, within numerous and comprehensive – sometimes casuistic too – normative devices, oriented to make an intense centralization. The aim of this work is indicate how jurisdictional federalism found in United States can preserve a consistent model with States robustly autonomous, while Brazil gives preference to normative mechanisms designed to starts from centralization.

Keywords: constitutional design, federalism, U.S. Supreme Court, legislative authority

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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: Andrei-Marius Sandu

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This study aims to analyze the bovine meat and milk sector for the period 2007-2013. For the period analyzed, it is known that Romania has benefited from EU funding through the National Rural Development Programme 2007-2013. In this programme, there were measures that addressed exclusively the animal husbandry sector in Romania. This paper presents data on bovine production of meat, milk and livestock in Romania, but also data on the price and impact the European Funds implementation had on them.

Keywords: European funds, measures, national rural development programme, price

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Authors: Sudaporn Arundee

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The purposes of this research were to study in three areas: (1) to study political understanding and participating of the constitutional monarchy, (2) to study the level of participation. This paper drew upon data collected from 395 Dusit residents by using questionnaire. In addition, a simple random sampling was utilized to collect data. The findings revealed that 94 percent of respondents had a very good understanding of constitution monarchy with a mean of 4.8. However, the respondents overall had a very low level of participation with the mean score of 1.69 and standard deviation of .719.

Keywords: political participation, constitutional monarchy, management and social sciences

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Authors: Zsuzsanna Fejes

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The aim of this paper is to provide an overview of the legal history of constitutionalism in Hungary, in focus of the democratic transitions in 1989-1990, describing the historical and political background of the changes and presenting the main and most important features of the new democracy, and institutional and legal orders. In Hungary the evolved political, economic and moral crisis prior to the constitutional years 2010-11 had been such a constitutional moment, which led to an opportune and unavoidable change at the same time. The Hungarian constitutional power intended to adopt a new constitution, which was competent to create a common constitutional identity and to express a national unity. The Hungarian Parliament on 18th April 2011 passed the New Fundamental Law. The new Fundamental Law rich in national values meant a new challenge for the academics, lawyers, and political scientists. Not only the classical political science, but also the constitutional law and theory have to struggle with the interpretation of the new declarations about national constitutional values in the Fundamental Law. The main features and structure of the new Fundamental Law will be analysed, and given a detailed interpretation of the Preamble as a declaration of constitutional values. During the examination of the Preamble shall be cleared up the components of Hungarian statehood and national unity, individual and common human rights, the practical and theoretical demand on national sovereignty, and the content and possibilities for the interpretation of the achievements of the historical Constitution. These scopes of problems will be presented during the examination of the text of National Avowal, as a preamble of the Fundamental Law. It is examined whether the Fundamental Law itself could be suitable and sufficient means to citizens of Hungary to express the ideas therein as their own, it will be analysed how could the national and European common traditions, values and principles stated in the Fundamental Law mean maintenance in Hungary’s participation in the European integration.

Keywords: common constitutional values, constitutionalism, national identity, national sovereignty, national unity, statehood

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Authors: Zaid Haris

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Since the beginning of time, transgender people have faced difficult circumstances, particularly in Pakistan. They have experienced discrimination, physical abuse, sexual assault, and murder in their lives. In response to their complaints, the Pakistani Supreme Court established a landmark that enables them to participate in society on an equal base. As a result, transgendered people living all around Pakistan have seen their legal, political, and cultural advocacy blossom since 2009. In order to provide and defend the human rights of Pakistan's transgender persons, this paper aims to identify and analyse the constitutional and legal framework set out there. The Supreme Court's momentous decision sparked legal reform in the nation for these rights, most notably the Transgender Persons (Protection of Rights) Act of 2017, a bill that was filed in Parliament. The implementation of the rights granted to transgender people in Pakistan, whether it relates to education, health, or any other area, requires close inspection. Additionally, for society to be accepting and inclusive, a significant and radical change in behaviour is required. This paper also includes the interviews of a few transgenders from Pakistan.

Keywords: discrimination, islam, pakistan, physical abuse, sexual assault, transgenders

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Authors: Zeynep Ozkan, Cigdem Serra Uzunpinar

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Citizenship is a legal bond that binds a person to a certain state. How constitutions define ‘the citizen’ and how they regulate the elements of citizenship have great importance in terms of individuals’ duties before the state as well as the rights they own. Especially in multi-segmented societies that contain foreign elements, it becomes necessary to examinate the institution of naturalization in terms of individuals’ duty of constitutional citizenship. The meaning of citizenship in Turkey has transformed due to the changes in practices of naturalization, in parallel to receiving huge amount of immagrants with the recent Syrian Crisis, the change in the governmental system and facing economic crisis. This transformation took place in the way of a diversion from the states’ initial motive of building the bond of citizenship with the aim of founding/sustaining political unity. Hence, rising of the economic and political motives in naturalization practices are in question, instead of objective and subjective criterias, that are traditionally used on defining the notion of nation. In this study, firstly the regime of citizenship and the legal regime of aliens in Turkish legislation will be given place. Then, the transformation, that the notion of constitutional citizenship underwent, will be studied, especially on the basis of governmental practices of naturalization. The assessment will be made in the context of legal institutions brought with the new governmental system as a result of recent constitutional amendment.

Keywords: constitutional citizenship, naturalization, naturalization practices in Turkish legal system, transformation of the notion of constitutional citizenship

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Authors: Stephen Fanale

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Criminalization creates sizable barriers to housing and perpetuates the cycle of homelessness. Not only does criminalization leave people on the streets and in shelters indefinitely, but it also unnecessarily costs the taxpayers. Homelessness is a growing issue throughout the world, and criminalizing these human beings is a violation of basic human rights. While this may seem like an insurmountable obstacle, there is something that can be done while fighting that battle. While they are under-researched as a whole, specialty courts, specifically homeless courts, are a growing vessel that can address some of the barriers associated with the criminalization of homelessness. They divert individuals away from jail while connecting them to services that will help their situation instead of hindering it. The model being used in Salt Lake City, while similar to others throughout the United States, stands alone in its outreach efforts and should be paving the way for the rest of the world. The following will look at criminalization and different ways of addressing it, and, finally, Salt Lake City’s current operations, including the unique outreach court: Kayak Court.

Keywords: barriers to housing, criminalization, cycle of homelessness, homeless court, diversion, kayak court

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Authors: M. van der Bank, C. M. van der Bank

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Alternative Dispute Resolution denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of Alternative Dispute Resolution, however, makes no mention of a vital consideration. ADR is the generally accepted acronym for alternative dispute resolution. Despite the choice not to proceed before a court or statutory tribunal, ADR will still be regulated by law and by the Constitution. Fairness is one of the core values of the South African constitutional order. Environmental disputes occur frequently, but due to delays and costs, ADR is a mechanism to resolve this kind of disputes which is a resolution of non-judicial mechanism. ADR can be used as a mechanism in environmental disputes that are less expensive and also more expeditious than formal litigation. ADR covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. A variety of ADR methods have been developed to deal with numerous problems encountered during environmental disputes. The research questions are: How can ADR facilitate environmental disputes in South Africa? Are they appropriate? And what improvements should be made?

Keywords: alternative dispute, environmental disputes, non-judicial, resolution and settlement

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Authors: Roger-Claude Liwanga

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Over the last seven decades, there has been a proliferation of international tribunals. Yet, they have not received unanimous approval, raising a question about their legitimacy. A legitimate international tribunal is one whose authority to adjudicate international disputes is perceived as justified. Using the case study of the International Court of Justice (ICJ), this article highlights the three criteria that should be considered in assessing the legitimacy of an international tribunal, which include legal, sociological, and moral elements. It also contends that the ICJ cannot claim 'full' legitimacy if any of these components of legitimacy is missing in its decisions. The article further suggests that the legitimacy of the ICJ has a dynamic nature, as litigating parties may constantly change their perception of the court’s authority at any time before, during, or after the judicial process. The article equally describes other factors that can contribute to maintaining the international court’s legitimacy, including fairness and unbiasedness, sound interpretation of international legal norms, and transparency.

Keywords: international tribunals, legitimacy, human rights, international law

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Authors: Erni Agustin, Zendy Prameswari

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The Law Number 1 Year 1974 on Marriage was issued by Indonesian Government to replace the old marriage law stipulated in Burgerlijk Wetboek inherited from the Dutch colonial. The Law defines marriage as both physical and mental bond between a man and a woman as husband and wife with the purpose to form a harmonious family based on deity. Marriage shall be conducted when determined requirements are met based on the Law. Article 7 of the Law Number 1 Year 1974 stipulates the minimum age requirement to enter into marriage, which is 19 years for men and 16 years for women. This stipulation is made to make the marriage achieve the true goal to form a happy, eternal and prosperous family. It is expected at that age, each party has a mature soul and physic. However, it is possible for those who have not reached the age to enter into marriage if there is a dispensation granted by the courts or other official designated by the parents of each party in the marriage. As many other countries in the world, Indonesia has serious problems linked with the child or underage marriage. Indonesia is one of the countries with the highest absolute numbers of child marriage. In 2012, a judicial review was filed to the Constitutional Court against the provisions of the minimum age limit in the Law Number 1 Year 1974 on Marriage. The appeal was filed in order to raise the limit of minimum age for women from 16 years to be 18 years. However, the Constitutional Court considered that the provisions on the minimum age in the Law Number 1 Year 1974 on Marriage is constitutional. At the international level, Indonesia has participated in the formulation of variety of international human rights instrument which have an impact on children, and is a party to a number of them. Indonesia ratified the CRC through Presidential Decree of the Republic of Indonesia Number 36 Year 1990 on 5 September 1990. This paper attempts to analyze three main issues. Firstly, it will scrutinize the ratio legis of the stipulation on minimum age requirement to enter into marriage in the Law Number 1 Year 1974 on Marriage. Secondly, it will discuss the conformity of Indonesian marriage law to the principles and provisions on the CRC. Last, this paper will elaborate the legal measures shall be taken to strengthen the legal protection for children against child marriage. This paper is a doctrinal research using statute, conceptual and historical approaches. This study argues that The Law-making of Indonesian marriage law influenced by religious values that live in Indonesia. With regard to the conformity of Indonesian marriage law with the CRC, Indonesia is facing the issue of the compatibility of its respective national law with the CRC. Therefore, the legal measures that have to be taken are to review and amend the Indonesian Marriage Law to provide better protection for the children against underage marriage.

Keywords: child marriage, children’s rights, indonesian marriage law, underage marriage

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Authors: Miguel Manero De Lemos

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The ‘innovative and creative’ seminal decision of the Special Tribunal for Lebanon (STL) was not welcomed by academic opinion. The court recognized that terrorism is a crime under international law in times of peace. Scholars widely – and sometimes aggressively – criticize this conclusion. This article asserts that, while some aspects of the decision of the STL might be defective, the basic premise, that it is indeed such a crime, is sound. This article delves into the method that the court used to attain such an outcome and explains why the conclusion of the court is correct, albeit the use of a different method is to be preferred. It also argues that subsequent developments leave little room to keep arguing that there is no international crime of terrorism.

Keywords: terrorism, STL, crime, international criminal law

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Authors: Naeem Ullah Khan, Kalsoom Khan

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No state can be progressive and prosperous in which a large number of people is deprived of their basic economic rights and freedoms. In the contemporary world of globalization, the right to development has gained a momentum force in the domain of International Development Law (IDL) and has integrated into the National Legal System (NLS) of the major developed states. The international experts on human rights argued that the right to development (RTD) is called a third-generation human right which tends to enhance the welfare and prosperity of individuals, and thus, it is a right to a process whose outcomes are human rights despite the controversy on the implications of RTD. In the Pakistan legal system, the RTD has not been expressly stated in the constitution of the Islamic Republic of Pakistan, 1973. However, there are some implied constitutional provisions which reflect the concept of RTD. The jurisprudence on RTD is still an evolving paradigm in the contextual perspective of Pakistan, and the superior court of diverse jurisdiction acts as a catalyst regarding the protection and enforcement of RTD in the interest of the public at large. However, the case law explores the positive inclination of the courts in Pakistan on RTD be incorporated as an express provision in the chapters of fundamental rights; in this scenario, the high court’s of Pakistan under Article 199 and the supreme court of Pakistan under Article 184(3) have exercised jurisdiction on the enforcement of RTD. This paper inter-alia examines the national dimensions of RTD from the standpoint of state practice in Pakistan and it analyzes the experience of judiciary in the protection and enforcement of RTD. Moreover, the paper highlights the social and cultural challenges to Pakistan in the implementation of RTD and possible solution to improve the conditions of human rights in Pakistan. This paper will also highlight the steps taken by Pakistan regarding the awareness, incorporation, and propagation of RTD at the national level.

Keywords: globalization, Pakistan, RTD, third-generation right

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Authors: Linda Muswaka

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The Constitution of the Republic of South Africa, 1996 ranks the Constitution as the Supreme law of the Republic. Law or conduct, inconsistent with the provisions of the Constitution is invalid to the extent of the inconsistency. The Constitution binds all persons and legislative, executive and judicial organs of the State at all levels of government. The Constitution embodies a Bill of Rights and expressly allows for judicial review. The introduction of a chapter of rights requires the judiciary to examine the decisions of the legislature and the executive. In a situation where these conflicts with the Bill of Rights, the judiciary have the constitutional power to overrule such decisions. In exercising its adjudicatory and interpretative powers, the judiciary sometimes arrives at unpopular decisions and accusations of judicial overreach are made. A problem, therefore, emerges on the issue of the separation of powers and judicial review. This paper proposes to, through the South African perspective, investigate the application of the doctrine of separation of powers and judicial review. In this regard, the qualitative method of research will be employed. The reason is that it is best suited to this type of study which entails a critical analysis of legal issues. The following findings are made: (i) a complete separation of powers is not possible. This is because some overlapping of the functions of the three branches of state are unavoidable; (ii) the powers vested in the judiciary does not make it more powerful than the executive and the legislature; (iii) interference by the judiciary in matters concerning other branches is not automatically, judicial overreach; and (iv) if both the executive and legislative organs of government adhere to their constitutional obligations there would be a decrease in the need for judicial interference through court adjudication. The researcher concludes by submitting that the judiciary should not derogate from their constitutionally mandated function of judicial review. The rationale being that that if the values contained in the Constitution are not scrupulously observed and their precepts not carried out conscientiously, the result will be a constitutional crisis of great magnitude.

Keywords: constitution, judicial review, judicial overreach, separation of powers

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Authors: Tashwill Esterhuizen

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Throughout Africa, several countries continue to have laws which criminalise same-sex sexual activities, which increases the vulnerability of the LGBT community to stigma, discrimination, and persecution. These criminal provisions often form the basis upon which states deny LGBT activists the right to freely associate with other like-minded individuals and form organizations that protect their interests and advocate for the rights and aspirations of the LGBT community. Over the past year, however, there has been significant progress in the advancement of universal, fundamental rights of LGBT persons throughout Africa. In many instances, these advancements came about through the bravery of activists who have publically insisted (in environments where same-sex sexual practices are criminalised) that their rights should be respected. Where meaningful engagement with the State was fruitless, activists took their plight to the judiciary and have successfully sought to uphold the fundamental rights of LGBT persons, paving the way for a more inclusive and tolerant society. Litigation Progress: Botswana is a prime example. For several years, the State denied a group of LGBT activists their right to freely associate and form their organisation Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), which aimed to promote the interests of the LGBT community in Botswana. In March 2016, the Botswana Court of Appeal found that the government’s refusal to register LEGABIBO violated the activists’ right to associate freely. The Court held that the right freedom of association applies to all persons regardless of their sexual orientation or gender identity. It does not matter that the views of the organisation are unpopular or unacceptable amongst the majority. In particular, the Court rejected the government of Botswana’s contention that registering LEGABIBO would disturb public peace and is contrary to public morality. Quite remarkably, the Court of Appeal recognised that while LGBT individuals are a minority group within the country, they are nonetheless persons entitled to constitutional protections of their dignity, regardless of whether they are unacceptable to others on religious or any other grounds. Furthermore, the Court held that human rights and fundamental freedoms are granted to all, including criminals or social outcasts because the denial of an individual’s humanity is the denial of their human dignity. This is crucial observation by the Court of Appeal, as once it is accepted that human rights apply to all human beings, then it becomes much easier for vulnerable groups to assert their own rights. Conclusion: The Botswana Court of Appeal decision, therefore, represents significant progress in the promotion of the rights of lesbian, gay, bisexual and transgender persons. The judgment has broader implications for many other countries which do not provide recognition of sexual minorities. It highlights the State’s duty to uphold basic rights and to ensure dignity, tolerance, and acceptance for marginalised persons.

Keywords: acceptance, freedom of association, freedom of expression, fundamental rights and freedoms, gender identity, human rights are universal, inclusive, inherent human dignity, progress, sexual orientation, tolerance

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Authors: Seane Mabitsela

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The Territory of Namibia was entrusted to South Africa as a Mandate under the League of Nations Covenant. After the dissolution of the League of Nations and the commencement of United Nations operations, South Africa's conception of its legal obligations under the mandate varied from those of other members of the United Nations. Because of that, the General Assembly requested the International Court of Justice for an Advisory Opinion on the international obligations of South Africa arising therefrom. The International Court of Justice declared that South West Africa was still a mandatory territory under the Covenant of the League of Nations. It also held that South Africa continued to transmit petitions from inhabitants of the territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions were to be submitted. Subject to this judgement, the question of South West Africa remained a dispute relating to the mandate brought before the International Court of Justice against South Africa. The International Court of Justice and South Africa dispute reflected the nature of the Namibian inhabitants’ appeal for recognition at the United Nations.

Keywords: International Court of Justice, Namibia, petitions, United Nations

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Authors: Gabriel Jinga, Madalina Dumitru

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The objective of this paper is to present the process of change in management accounting in Romania, a former communist country from Eastern Europe. In order to explain this process, we used the contingency and institutional theories. We focused on the following directions: the presentation of the scientific context and motivation of this research and the case study. We presented the state of the art in the process of change in the management accounting from the international and national perspective. We also described the evolution of management accounting in Romania in the context of economic and political changes. An important moment was the fall of communism in 1989. This represents a starting point for a new economic environment and for new management accounting. Accordingly, we developed a case study which presented this evolution. The conclusion of our research was that the changes in the management accounting system of the company analysed occurred in the same time with the institutionalization of some elements (e.g. degree of competition, training and competencies in management accounting). The management accounting system was modeled by the contingencies specific to this company (e.g. environment, industry, strategy).

Keywords: management accounting, change, Romania, contingency, institutional theory

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Authors: Nour Mohammad

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The concept of International Criminal Court is not a new idea.It goes back to the late 19th century and was first mooted in 1872 by Gustave Moynier of the International Commitee of the Red Cross(ICRC). This paper attempts to focus on jurisdictional problem of the international criminal court (ICC) over national of states of non parties to the Rome statute. Mor than 120 countries are state parties to the Rome Statute representing all regions, Afria, the Asia-pacofoc Eastern Europe, Latin America and the Caribben as well as Western Europe and North America.The Statute is the core document of internationa criminal law todaycontaining 128 Articles and divided in 13 parts.The Rome Statute provides that the court may sit elsewhere the judge consider it desirable.The International Criminal Court is not in a position to adjudicate all international crimes but its jurisdiction is limited to the four categories of crime viz. genocide, crimes against humanity, war crimes and crime of aggression as stipulated in Article 5 of the ICC Statute. It also mention here that the Court will be able to exercise its jurisdiction over the crime of aggression only when this crime is defined. Due to the highly political nature of this crime, it is unlikely that a consensus in this regard would be arrived at in the near future.The main point of this article is to discuss the mandate of international criminal court to prosecute and punish persons responsible for the henious crimes of concern to the international community.The author highlighted the principles which support the delegation of criminal jurisdiction by state to international tribunals and discuss the precedents of such delegation.It also argued that the exercise of ICC jurisdiction over acts done pursuant to the officially policy of non-party state would not be contrary to the principles requiring consent for the exercise of jurisdiction by international tribunals. The article explore the limit to jurisdiction of ICC over non-party nationals.

Keywords: jurisdiction, international, criminal, court, non-parties

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Authors: Hasan Alrashid

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The 2005 Hague Convention seeks to ensure legal certainty and predictability between parties in international business transactions. It harmonies exclusive choice of court agreements at the international level between parties to commercial transactions and to govern the recognition and enforcement of judgments resulting from proceedings based on such agreements to promote international trade and investment. Although the choice of court agreements is significant in international business transactions, the United Arab Emirates refuse to recognise it by Article 24 of the Federal Law No. 11 of 1992 of the Civil Procedure Code. A review of judicial judgments in United Arab Emirates up to the present day has revealed that several cases appeared before the Court in different states of United Arab Emirates regarding the recognition of exclusive choice of court agreements. In all the cases, the courts regarded the exclusive choice of court agreements as a direct assault on state authority and sovereignty and refused categorically to recognize choice of court agreements by refusing to stay proceedings in favor of the foreign chosen court. This has created uncertainty and unpredictability in international business transaction in the United Arab Emirates. In June 2011, the first Gulf Judicial Seminar on Cross-Frontier Legal Cooperation in Civil and Commercial Matters was held in Doha, Qatar. The Permanent Bureau of the Hague Conference attended the conference and invited the states of the Gulf Cooperation Council (GCC) namely, The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait to adopt some of the Hague Conventions, one of which was the Hague Convention on Choice of Court Agreements. One of the recommendations of the conference was that the GCC states should research ‘the benefits of predictability and legal certainty provided by the 2005 Convention on Choice of Court Agreements and its resulting advantages for cross-border trade and investment’ for possible adoption of the Hague Convention. Up to today, no further step has been taken by the any of the GCC states to adapt the Hague Convention nor did they conduct research on the benefits of predictability and legal certainty in international business transactions. This paper will argue that the approach regarding the recognition of choice of court agreements in United Arab Emirates states can be improved in order to help the parties in international business transactions avoid parallel litigation and ensure legal certainty and predictability. The focus will be the uncertainty and gaps regarding the choice of court agreements in the United Arab Emirates states. The Hague Convention on choice of court agreements and the importance of harmonisation of the rules of choice of court agreements at international level will also be discussed. Finally, The feasibility and desirability of recognizing choice of court agreements in United Arab Emirates legal system by becoming a party to the Hague Convention will be evaluated.

Keywords: choice of court agreements, party autonomy, public authority, sovereignty

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Authors: Tareq M. Aziz Elven

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The issue of Human Rights enforcement in Southeast Asia has become the serious problem and attract the attention of international community. Principally, Association of Southeast Asian Nations (ASEAN) has mentioned the Human Rights as one of the focus and be a part of the ASEAN Charter in 2008. It was followed by the establishment of ASEAN Inter-Governmental Commission on Human Rights (AICHR). AICHR is the commission of Human Rights enforcement in Southeast Asia which has a duty, function, and an authority to conduct dissemination and protection of Human Rights. In the end of 2016, however, the function of protection mandated to AICHR have not achieved yet. It can be proved by several cases of Human Rights violation which still exist and have not settled yet. One of case which attracts the public attention recently is human rights violation towards Rohingya in Myanmar. Using the juridical-normative method, the research aims to examine the urgency of Human Rights court establishment in Southeast Asia region which able to issue the decision that binds the ASEAN members or the violating parties. The data shows that ASEAN needs to establish a regional court which intended to settle the Human Rights violations in ASEAN region. Furthermore, the research also highlights three strong factors should be settled by ASEAN for establishing human rights court i.e. the significant distinction of democracy and human rights development among the members, the strong implementation of non-intervention principle, and the financial matter to sustain the court.

Keywords: AICHR, ASEAN, human rights, human rights court

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Authors: Tatia Kekelia

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This paper is part of an ongoing research addressing gender discrimination in the Court of Georgia. The research suggests that gender stereotypes influence the processes at the Court in contemporary Georgia, which causes uneven fights for women and men, not to mention other gender identities. The sub-hypothesis proposes that the gender stereotypes derive from feudal representations, which persisted during the Soviet rule. It is precisely those stereotypes that feed gender-based discrimination today. However, this paper’s main focus is on the main hypothesis, describing the revealed stereotypes, and identifying the Court as a place where their presence is most hindering societal development. First of all, this happens by demotivating people, causing loss of trust in the Court, and therefore potentially encouraging crime. Secondly, it becomes harder to adequately mobilize human resources, since more than a half of the population is female, and under the influence of rigid or more subtle forms of discrimination, they lose not only equal rights, but also the motivation to work or fight for them. Consequently, this paper falls under democracy studies as well – considering that an unbiased Court is one of the most important criteria for assessing the democratic character of a state. As the research crosses the disciplines of sociology, law, and history, a complex of qualitative research methods is applied, among which this paper relies mainly on expert interviews, interviews with attorneys, and desk research. By showcasing and undermining the gender stereotypes that work at the Court of Georgia, this research might assist in rising trust towards it in the long-term. As for the broader relevance, the study of the Georgian case opens the possibility to conduct comparative analyses in the region and the continent, and, presumably, carve the lines of cultural influences.

Keywords: gender, stereotypes, bias, democratization, judiciary

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Authors: M Jeffri Arlinandes Chandra, Puwaningdyah Murti Wahyuni, Dewi Mutiara M Jeffri Arlinandes Chandra, Puwaningdyah Murti Wahyuni, Dewi Mutiara

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Indonesia is a state of the law in accordance with article 1 paragraph 3 of the Constitution of the Republic of Indonesia (1945 Constitution), namely, 'the State of Indonesia is a state of law'. The consequences of the rule of law are making the law as the main commanding officer or making the law as a basis for carrying out an action taken by the state. The types of regulations and procedures for the formation of legislation in Indonesia are contained in Law Number 12 of 2011 concerning the Formation of Legislation. Various attempts were made to make quality regulations both in the formal hierarchy and material hierarchy such as synchronization and harmonization in the formation of laws and regulations so that there is no conflict between equal and hierarchical laws, but the fact is that there are still many conflicting regulations found between one another. This can be seen clearly in the many laws and regulations that were sued to judicial institutions such as the Constitutional Court (MK) and the Supreme Court (MA). Therefore, it is necessary to have a formulation regarding the governance of the formation of laws and regulations so as to minimize the occurrence of lawsuits to the court so that positive law can be realized which can be used today and for the future (ius constituendum). The research method that will be used in this research is a combination of normative research (library research) supported by empirical data from field research so that it can formulate concepts and answer the challenges being faced. First, the structuring of laws and regulations in Indonesia must start from the inventory of laws and regulations, whether they can be classified based on the type of legislation, what are they set about, the year of manufacture, etc. so that they can be clearly traced to the regulations relating to the formation of laws and regulations. Second, the search and revocation/revocation of laws and regulations that do not exist in the state registration system. Third, the periodic evaluation system is carried out at every level of the hierarchy of laws and regulations. These steps will form an ideal model of laws and regulations in Indonesia both in terms of content and material so that the instructions can be codified and clearly inventoried so that they can be accessed by the wider community as a concrete manifestation of the principle that all people know the law (presumptio iures de iure).

Keywords: legislation, review, evaluation, reconstruction

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Authors: Romina Beqiri

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In the context of the prosecution of those responsible for the commission of the most hideous crimes and the fight against impunity, a fundamental role is played by witnesses of the crimes who contribute to ascertaining the ‘procedural truth’. This article examines recent decisions and legislation of the Hague-based International Criminal Court in terms of the endangerment of the integrity of the criminal proceedings in consequence of witness tampering. The analysis focuses on the new developments in the courtroom and the academia, in particular, on the first-ever sentence confirming the charges of corruptly influencing witnesses, interpretation of presenting false evidence and giving false testimony when under an obligation to tell the truth. Confronted with recent tampering with witnesses and their credibility at stake in the ongoing cases, the research explores different Court’s decisions and scholars’ legal disputes concerning the deterrence approach to punish the authors of offences against the administration of justice when committed intentionally. Therefore, the analysis concludes that the Court cannot tolerate any witness false testimony and should enhance consistency and severity of sanctions for the sake of fair trial and end impunity.

Keywords: International Criminal Court, administration of justice, credibility of witness, fair trial, false testimony, witness tampering

Procedia PDF Downloads 150