Search results for: courts and jurisprudence

Authors: Nazia Yaqub

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Globally, the number of cases of international parental child abduction has remained consistent in the past decade despite the legal provision designed to prevent and deter abduction, and so it appears the current legal approach to prevent abduction is lacking. Reflecting on the findings of an empirical study conducted by the author between 2017-19 on parental abduction from the UK, the article considers a solution to the predicament of protecting children at risk of abduction through electronic monitoring. The electronic monitoring of children has negative connotations, particularly in its use in the criminal justice system, yet in the context of family law proceedings, the article considers whether electronic monitoring could serve a protective rather than a punitive purpose. The article reflects on the use of electronic monitoring in parental abduction cases by the Family Courts and examines the ethical considerations of the proposal, drawing on the rights found in the European Convention on Human Rights and the UN Convention on the Rights of the Child.

Keywords: law, parental child abduction, electronic monitoring, legal solutions

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Authors: Muhammad Tanziel Aziezi

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In Indonesia, pre-trial (in Indonesia called ‘praperadilan’) is a mechanism that is regulated on Criminal Procedure Code as a form of oversight and check and balance on the process at the stage of inquiry, investigation, and prosecution, so that actions taken by the State (in this case, the police and prosecutor) is carried out in accordance with its authority and not violate human rights. Article 77 of the Criminal Procedure Code has been set that the object may be filed pretrial is just about the lawfulness of the arrest, the lawfulness of the detention, and the legitimacy of stopping investigation and prosecution. However, since the beginning of 2015, there was a further object which is then entered as a pre-trial object, namely the lawfulness of the determination of a criminal suspect. This is because the determination of the suspect is considered as one of the forceful measures that could restrict the rights of a person, so the implementation should have oversight and checks and balances by the courts. This paper will discuss the development of the pre-trial on the lawfulness of the determination of a criminal suspect as a new judicial mechanism as the protection of human rights in Indonesia.

Keywords: criminal procedure law, pre-trial, lawfulness of determination of a criminal suspect, check and balance by the court

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Authors: Nasurullah Qureshi

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Shaikh Ahmad Sirhindi Mujadid Alif Thani (1564-1624) and his philosophy had influenced sub-continent as the whole; its rulers and nation. In his reign, he convinced the rulers toward Islamic way of life and succeed in his goal. After his death in 1624, his family consecutively produced prominent scholars to present. Some of them moved to Afghanistan and Pakistan's cities i.e., Jalalabad, Qandhar, Peshawar, Queta, Shikarpur, Hyderabad, and Sehwan. They played a vital role in their areas and transmitted spiritual and legal Islamic teachings to people. This research is aimed to elaborate efforts of the family's Sindh settled branch from 1898-present in fields of politics and Islamic education. Their link with Shaikh Ahmad Sirhindi will be provided in the introduction. After that, the work will explain their scholarly published work briefly in different fields of Islamic studies such as Quran exegeses and its translation in Sindhi language, Hadith and its sciences, Islamic Jurisprudence, Sufism and etc. In addition, their political role will be briefly discussed in the research throughout the period, especially their noticeable role in the separate homeland for Muslims in the subcontinent. Furthermore, the impact of their scholarly work, political influence and spirituality will be enlightened. Lastly, the research will present the critical viewpoint on their struggle.

Keywords: Shaikh Ahmad Sirhindi, Sirhindi scholars, Sindh, Sufism

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Authors: Marie Manikis

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This paper argues that the scholarship to date on victims in the criminal process has mainly adopted a private conception of victims –as bearers of individual interests, rights, and remedies– rather than a conception of the victim as an actor with public functions and interests, who has historically and continuously taken on an active role in the common law tradition. This conception enables a greater understanding of the various developments around victim participation in common law criminal justice systems and provides a useful analytical tool to understand the different roles of victims in England and Wales and the United States. Indeed, the main focus on individual rights and the conception of the victim as a private entity undermines the distinctive and increasing role victims play in the wider criminal justice process as agents of accountability through administrative-based processes within and outside courts, including private prosecutions, internal review processes within prosecutorial agencies, judicial review, and ombudsmen processes.

Keywords: victims, participation, criminal justice, accountability

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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: Aisya Zaharin

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The reporting of Islam in the Malaysian government-controlled press is complicated and occurs almost daily. This is due to the Islamisation process that has been heavily politicized in recent years. This article analyses media representations of Islam in the Malaysian media through the social responsibility theory. A provocative case study of media reporting on the “I want to touch a dog” event was analysed since dog’s saliva is ritually considered unhygienic by Muslims. This paper will not question the Islamic ruling on the dog’s issue. Instead, it calls for discussions in relation to openness and maturity in religious discourse with respect to the dog’s saliva dialogue in 1937. It applies Hage’s “minor and major reality” to explain the increasing percentage of Muslim who define their own understandings of Islam vs the government’s dogmatic versions. This paper employs Alatas’s method of “sociological investigation in Southeast Asia” by using ethnographic examination on selected mass media. Through Asiacentricity approach, this paper revisited the local framework of Alatas’s New Man encouraging Muslims to engage in knowledge and to appreciate diversities in Islamic jurisprudences. Despite government’s control, findings showed that non-Malay languages and online media are more comprehensive in reporting the news about Islam. Clearly, there has to be a re-conceptualization of Islamic discourses in the Malay-language media.

Keywords: dog, Fiqh, Islamic jurisprudence, Malaysian media, New Man, social responsibility

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Authors: Pranav Vaidya

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The recent upheaval of a ballot initiative taken place in California & Los Angeles‘s newspapers shows how the concept of giving Death Penalty obliterates the very soul basis of community and society which rests upon the tripod of values, ethics, and morality. This paper goes on with examining how, by giving death penalties we are, on one hand trying to wipe out those heinous offenders committing such unspeakable crimes against the public; while on the other hand it comes with a devastating effect of corroding and eluding the existence of ethics and morality which is in the very nature of “protecting the life of humankind”. As it can be stated that, by giving capital punishment, we are trying to legitimize an irreversible act of violence by the authority of state and target innocent victims because as long as the human justice is fallible, the risk of executing an innocent can never be eliminated. However, scholars in the legalization of Capital Punishment have argued that the courts should impose punishment befitting the crime so that they could reflect public abhorrence of the crime, create deterrent or rehabilitating effects & deliver the truest form of justice.

Keywords: ethics, heinous offenders, morality, unspeakable crimes

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Authors: Asad Rehman

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Although a vast majority relates the concept of ‘halal’ or what is permissible in Islam to food only. However, halal industry covers many sectors such as food, fashion, transport, finance and even tourism. Halal tourism is not just about halal food; it is also about the overall experience, which is amenable with the Shariah (Islamic jurisprudence). Oman has a plethora of natural beauty and many places of interest for all types of tourists. It is one of the most secure and peaceful countries in the world. Having a well-developed Infrastructure, Oman is ready to take its tourism to new heights. The ever-hospitable Omanis are proud of their rich cultural and historical heritage. Thus, Oman appears to have all what it takes to become a prime destination for halal tourism. The objective of this study is to assess the prospects of Oman as a destination for halal tourism. Based on the interviews of experts like academicians, tourism professionals, officials and clerics, Oman’s competitiveness as a destination for halal tourism was assessed by developing a Strengths, Weaknesses, Opportunities and Threats (SWOT) profile. The findings of the SWOT were compared with the data from the Global Muslim Travel Index (GMTI) from the year 2014 to 2018. Based on the analysis, Oman is found to have the right mix of environment and enabling services for halal tourism. However, it is found lacking in public transport, communication and customer outreach. Oman is also found to be losing its rank among the top 10 destinations for halal tourism to close competitors like Qatar, Bahrain, Morocco, etc. The concerned authorities need to make conscious efforts to resolve these issues as it becomes imperative for Oman to revamp its tourism strategy.

Keywords: destination, halal, Islam, SWOT, tourism

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Authors: Uzma Fakhar, Osama Fakhar, Aamir Shafiq Ch

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Methods of alternate dispute resolution (ADR) like conciliation, arbitration, mediation are the supplement to ensure inexpensive and expeditious justice in a country. Justice delayed has not only created chaos, but an element of rebellious behavior towards judiciary is being floated among people. Complexity of traditional judicial system and its diversity has created an overall coherence. Admittedly, In Pakistan the traditional judicial system has failed to achieve its goals which resulted in the backlog of cases pending in courts, resultantly even the critics of alternate dispute resolution agree to restore the spirit of expeditious justice by reforming the old Panchayat system. The Government is keen to enact certain laws and make amendments to facilitate the resolution of a dispute through a simple and faster ADR framework instead of a lengthy and exhausting complex trial in order to create proliferation and faith in alternate dispute resolution. This research highlights the value of ADR in a country like Pakistan for revival of the confidence of the people upon the judicial process and a useful judicial tool to reduce the pressure on the judiciary.

Keywords: alternate dispute resolution, development of law, expeditious justice, Pakistan

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Authors: Maria João Mimoso, Bárbara Magalhães Bravo

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This study aims to analyse the phenomenon of arbitration as a paradigm in solving emerging controversies of foreign investment. We will present their benefits and demonstrate their contribution to greater legal certainty in economic relations. This article explores the legal relevant concepts under a strictly conceptual methodology, preparing future research to be developed under more developed comparative law methodologies. The review of national and international literature and jurisprudence will reveal the importance of arbitration in the field of international economic relations, presenting it as an alternative dispute resolution. Globalization imposes new forms of investment protection and appeals to other forms of dispute settlement, primarily to prevent, among other problems, the possible bias of the recipient country's investment tribunals. Characterization of foreign investment, its regulatory sources, their characteristics and the need for intervention of an entity capable of resolving disputes between the parties involved: State investor reception; Investor (of a nationality other than the latter); State of the investor's nationality, and sometimes a ‘subsidiary’ local foreign investor. The ICSID (International Settlement of Investment Disputes) arbitration as a means of resolving investment litigations covered by bilateral treaties (BIT) and investment contracts calls for a delimitation of these two figures in order to clarify the scope of the arbitration under the aegis of the World Bank and to make it more secure in the view of the sovereign power of the States.

Keywords: arbitration, contract, foreign, investment, disputes

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Authors: Rafat Y. Alwazna

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Certain religious texts are deemed part of legal texts that are characterised by high sensitivity and sacredness. Amongst such religious texts are Islamic legal texts that are replete with Islamic legal terms that designate particular legal concepts peculiar to Islamic legal system and legal culture. However, from the syntactic perspective, Islamic legal texts prove lengthy, condensed and convoluted, with little use of punctuation system, but with an extensive use of subordinations and co-ordinations, which separate the main verb from the subject, and which, of course, carry a heavy load of legal detail. The present paper seeks to examine the syntactic features of Islamic legal texts through analysing a short text of Islamic jurisprudence in an attempt at exploring the syntactic features that characterise this type of legal text. A translation of this text into legal English is then exercised to find the translation implications that have emerged as a result of the English translation. Based on these implications, the paper compares and contrasts the syntactic features of Islamic legal texts to those of legal English texts. Finally, the present paper argues that there are a number of syntactic features of Islamic legal texts, such as nominalisation, passivisation, little use of punctuation system, the use of the Arabic cohesive device, etc., which are also possessed by English legal texts except for the last feature and with some variations. The paper also claims that when rendering an Islamic legal text into legal English, certain implications emerge, such as the necessity of a sentence break, the omission of the cohesive device concerned and the increase in the use of nominalisation, passivisation, passive participles, and so on.

Keywords: English legal texts, Islamic legal texts, nominalisation, participles, passivisation, syntactic features, translation implications

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Authors: Qusai Alshahwan

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The arbitrator’s duties of independence and impartiality play a significant role in delivering arbitral awards which legitimate the fundamental of arbitration concepts. For this reason, the international and national arbitration rules require arbitrators to be independent and impartial to solve the arbitration disputes fairly between the parties. However, solving the disputes fairly also requires arbitrators to disclose any existing conflicts of interest with the parties to avoid misunderstanding and late challenges. In contrary with the international and national arbitration rules, the English Arbitration Act 1996 does not include independence as a separate ground for arbitrator’s removal, and importantly the English Arbitration Act 1996 is deliberately silent to the arbitrator duty of disclosure. The absence of arbitrator duty of disclosure is an issue had generated uncertainty and concerns for the arbitration community under the English jurisdiction, particularly when the English courts rejected the IBA guidelines of arbitrator conflict of interest such as in case of Halliburton v Chubb for example. This article is highlighting on the legal consequences of the absence of arbitrator duty of disclosure under the English Arbitration Act 1996 and the arbitrator's contractual obligations.

Keywords: arbitration, impartiality, independence, duty of disclosure, English Arbitration Act 1996

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Authors: Chukwuemeka Castro Nwabuzor

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The 2015 Administration of Criminal Justice Act in Nigeria clearly sets out conditions for bail for felonies, lesser offenses and capital offenses. Even where the conditions for bail are met, granting an application for bail is not automatic as it is subject to the discretion of the court. Where the court, however, grants bail to an accused, the detaining authority which usually is the executive arm of government is bound to comply with the order of the court. This paper discusses the constitutionality of the continued detention of criminal suspects in disobedience to an order of the court and in the absence of an appeal. Particularly, the paper looks at the rights to personal liberty, the dignity of the human person and also the presumption of innocence which remains one of the crucial pillars of our criminal jurisprudence. The paper analyses the reasons posed by the executive for the continued detention of a suspect including State security and security of the suspect and questions whether the reasons are reasonable justifiable in a constitutional democratic society and whether they breach the principles of separation of powers. The paper concludes that the continued detention criminal of suspects in disobedience to court orders constitutes contempt of court and dishonours the principles of separation of powers enshrined in the Nigerian Constitution. This paper makes a strong case for the donation of more enforceable powers to the judiciary particularly with regards to the granting of compensation orders against the executive and ensuring compliance by the executive to bail orders.

Keywords: breach of fundamental rights, contempt of court, discretion of court, right to bail, separation of powers

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Authors: Joel Niklaus, Matthias Sturmer

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The publication of judicial proceedings is a cornerstone of many democracies. It enables the court system to be made accountable by ensuring that justice is made in accordance with the laws. Equally important is privacy, as a fundamental human right (Article 12 in the Declaration of Human Rights). Therefore, it is important that the parties (especially minors, victims, or witnesses) involved in these court decisions be anonymized securely. Today, the anonymization of court decisions in Switzerland is performed either manually or semi-automatically using primitive software. While much research has been conducted on anonymization for tabular data, the literature on anonymization for unstructured text documents is thin and virtually non-existent for court decisions. In 2019, it has been shown that manual anonymization is not secure enough. In 21 of 25 attempted Swiss federal court decisions related to pharmaceutical companies, pharmaceuticals, and legal parties involved could be manually re-identified. This was achieved by linking the decisions with external databases using regular expressions. An automated re-identification system serves as an automated test for the safety of existing anonymizations and thus promotes the right to privacy. Manual anonymization is very expensive (recurring annual costs of over CHF 20M in Switzerland alone, according to an estimation). Consequently, many Swiss courts only publish a fraction of their decisions. An automated anonymization system reduces these costs substantially, further leading to more capacity for publishing court decisions much more comprehensively. For the re-identification system, topic modeling with latent dirichlet allocation is used to cluster an amount of over 500K Swiss court decisions into meaningful related categories. A comprehensive knowledge base with publicly available data (such as social media, newspapers, government documents, geographical information systems, business registers, online address books, obituary portal, web archive, etc.) is constructed to serve as an information hub for re-identifications. For the actual re-identification, a general-purpose language model is fine-tuned on the respective part of the knowledge base for each category of court decisions separately. The input to the model is the court decision to be re-identified, and the output is a probability distribution over named entities constituting possible re-identifications. For the anonymization system, named entity recognition (NER) is used to recognize the tokens that need to be anonymized. Since the focus lies on Swiss court decisions in German, a corpus for Swiss legal texts will be built for training the NER model. The recognized named entities are replaced by the category determined by the NER model and an identifier to preserve context. This work is part of an ongoing research project conducted by an interdisciplinary research consortium. Both a legal analysis and the implementation of the proposed system design ESRA will be performed within the next three years. This study introduces the system design of ESRA, an end-to-end system for re-identification and anonymization of Swiss court decisions. Firstly, the re-identification system tests the safety of existing anonymizations and thus promotes privacy. Secondly, the anonymization system substantially reduces the costs of manual anonymization of court decisions and thus introduces a more comprehensive publication practice.

Keywords: artificial intelligence, courts, legal tech, named entity recognition, natural language processing, ·privacy, topic modeling

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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: Vera Lúcia Raposo

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Medical devices are products used for medical purposes and aimed to operate in the human body, sometimes even inside the human body. Therefore, they can become particularly risky products, and some of the injuries caused by medical devices can have serious effects on the person’s health or body, even leading to death. Because they fit in the category of 'products' as described in Article 2 of Council Directive 85/374/EEC of 25 July 1985, concerning liability for defective products, the liability of the manufacturer of medical devices follows the rules of strict liability as long as one of the defects covered by the directive is at stake. The directive is not concerned with the product’s efficiency, but instead with the product’s safety, although in what regards medical devices (the same being valid for drugs) the two concepts frequently go together, and a lack of efficiency can result in a lack of safety. In the particular case of medical devices, the most debatable defects are the ones related with erroneous or non-existing information and the so-called development defects. This paper analyses how directive 85/374/EEC applies to medical devices, which defects are covered by its regulation, and which criteria can be used to evaluate the product’s safety. Some issues are still to be clarified, even though the decisions from the European Court of Justice and from national courts are valuable tools to understand the scope of directive 85/374/EEC in what regards medical devices.

Keywords: medical devices, producer’s liability, product safety, strict liability

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Authors: Oluchukwu P. Obioma, Amarachi R. Dike

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Competition law promotes market competition by regulating anti-competitive conduct by undertakings. There is a need for a third party to regulate the market for efficiency and supervision, since, if the market is left unchecked, it may be skewed against the consumers and the economy. Competition law is geared towards the protection of consumers from economic exploitation. It is the duty of every rational government to optimally manage its economic system by employing the best regulatory practices over the market to ensure it functions effectively and efficiently. The Nigerian government has done this by enacting the Federal Competition and Consumer Protection Act, 2018 (FCCPA). This is a comprehensive legal framework with the objective of governing competition issues in Nigeria. Prior to its enactment, the competition law regime in Nigeria was grossly inadequate despite Nigeria being the biggest economy in Africa. This latest legislation has become a bold step in the right direction. This study will use the doctrinal methodology in analyzing the FCCPA, 2018 in order to discover the extent to which the Act will guard against anti-competitive practices and promote competitive markets for the benefit of the Nigerian economy and consumers. The study finds that although the FCCPA, 2018 provides for the regulation of competition in Nigeria, there is a need to effectively tackle the challenges to the implementation of the Act and the development of anti-trust jurisprudence in Nigeria. This study concludes that incisive implementation of competition law in Nigeria will help protect consumers and create a conducive environment for economic growth, development, and protection of consumers from obnoxious competition practices.

Keywords: anti-competitive practices, competition law, competition regulation, consumer protection.

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Authors: Danielle Page

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Foregoing studies, statistics, and medical evaluations have established a relationship between Posttraumatic stress disorder (PTSD) and criminal justice involvement in Vietnam veterans. War is highly trauma inducing and can leave combat veterans with mental disorders ranging from psychopathic thoughts to suicidal ideation. The majority of those suffering are unaware that they have PTSD, and as a coping mechanism, they often turn to self isolation. Beyond isolation, many veterans with symptomatic PTSD turn to aggression and substance abuse to cope with their internal agony. The most common crimes committed by veterans with PTSD fall into the assault and drug/alcohol abuse categories. Thus, a relationship is established between veteran populations and the criminal justice system. This dissertation aims to define the relationship between PTSD and criminal justice involvement in veterans, explore the mediating factors in this relationship, and analyze numerous court cases in this subject area. Further, it will examine the ways in which crime rates can be reduced for veterans with symptoms of PTSD. This ranges from the improvement of healthcare systems to the implementation of special courts to handle veteran cases.

Keywords: psychotraumatology, forensic psychology, PTSD, vietnam veterans

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Authors: Jorn Meyer, Stefan Sturmer

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The assessment of attachment patterns in toddlers and adults has been well researched, and valid diagnostic methods (e.g., Strange Situation Test, Adult Attachment Interview) are applicable. For middle and late childhood, on the other hand, there are only few validated methods available so far. For the Child Attachment Interview (CAI) promising validation studies from English-speaking countries are available, but so far a comprehensive study on the validity of a German sample is lacking. Within the scope of a longitudinal project, the results of the first point of measurement are reported in this study. A German-language version of the CAI was carried out with 111 primary school children (56% female; age: M = 8.34, SD = 0.49). In relation to psychometric quality criteria, parameters on interrater reliability, construct validity and discriminant, and convergent validity are reported. Analyses of the correlations between attachment patterns and internalizing and externalizing behavior problems from parent and teacher reports are presented. The implications for the German-language assessment of attachment in middle and late childhood in research and individual case diagnostics, e.g., in the context of conducting expert evaluation reports for family courts, are discussed.

Keywords: attachment, attachment assessment, developmental psychology, longitudinal study

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Authors: Cassandra Seery

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During the twentieth century, the notion of child rights at the international level began with the League of Nations’ Geneva Declaration of the Rights of the Child 1924, culminating in the development and adoption of the UN Convention on the Rights of the Child (‘the Convention’) in 1989. A key foundation of child rights lies in the development of the ‘best interests of the child’ principle and its subsequent incorporation into domestic legislation across the globe. This principle has become a key concept in child rights protection and has become a widely recognized principle in the protection of child rights. However, despite its status as the primary operating standard in child and family law and its ‘deepening hold in domestic and international instruments’, the meaning of the ‘best interests of the child’ principle has been criticised as open-ended and vague. This paper explores the evolution and development of the principle in the context of parental separation at international law throughout the 21st century and identifies opportunities for the Nation States to further improve legislative responses in associated child protection cases. An extensive review of relevant United Nations documentation (including instruments, resolutions and comments, jurisprudence, reports, guidelines and policies, training materials and so forth) explores: (i) what progress has been made to further develop the principle at the international level with regard to parental separation; and (ii) what developments participating the Nation States should consider as part of future legal and social policy reforms in this space. It will highlight opportunities for improvement and explore the benefit and relevance of international approaches for the Nation States moving forward.

Keywords: international human rights, best interests of the child, legal and social policy, child rights

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Authors: Shreeya Umashankar

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The Supreme Court of India has emerged as the most powerful organ of State and amongst the foremost constitutional courts in the world through the instrument of Public Interest Litigation (PIL), the exercise of writ jurisdiction and the expansive interpretation of fundamental rights guaranteed by the Constitution of India. Judicial activism impinging on every facet of governance has become the norm in recent times. This paper traces the evolution of judicial activism since Independence through pronouncements of the Supreme Court. It brings out distinct phases in this evolution– the initial phase of judicial restraint, the first phase of an activist judiciary where the Supreme Court primarily was concerned with protection of fundamental rights and humane treatment of citizens; the second phase where the Supreme Court took keen interest in preservation and protection of the environment; the third phase where the Supreme Court extended its reach into the socio-economic arena and the fourth phase when issues of transparency and probity in governance led to interventions by the Supreme Court. The paper illustrates through judgements of the Supreme Court that the instrument of the PIL and the exercise of writ jurisdiction by the Supreme Court go beyond the traditional postulates of judicial processes and political theory on separation of powers between the organs of State.

Keywords: fundamental rights, judicial activism, public interest litigation, Supreme Court of India

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Authors: Jacques C. Duvenhage

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The use of emoticons or so-called ‘emojis’ has gained much attention, not only in the daily use thereof with friends or family but also within the workplace amongst co-workers and employers. Even though emojis may be seen as a way to express feelings or even ideas, it may present legal challenges in the workplace. With new emojis being created on a daily basis, communicating through emojis, whether via phone, email or social media platforms, can become convoluted, especially within the working environment. The question to be addressed is how and/or whether Australian legislators will regulate the use of emojis (as a form of technology) in the workplace to prevent harassment, discrimination and other forms of prejudice. The emojis sent to co-workers may be interpreted by employees and even employers in different ways depending on their age, sexual orientation, and cultural background. Therefore, Australian courts will need to interpret an emoji’s meaning on a case-by-case basis. This paper will explore the use of emojis in the workplace (drawing on a desktop study), the impact emojis have on the employer-employee relationship as well as co-worker relationships, its legal application through case studies and whether a legal framework should be adopted by Australian legislators on this issue. Furthermore, this paper will reflect on the legal framework and application of emojis in the workplace considering foreign jurisdictions such as the United Kingdom and the United States of America and whether Australia should adopt similar legal approaches to these jurisdictions.

Keywords: emoticons, legal approaches, regulation, workplace

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Authors: Biswanath Gupta, Raju Kd

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Space law is the new entry in the basket of international law in the latter half of the 20th Century. In the last hundred and fifty years, courts and scholars developed a consensus that, the custom is an important source of international law. Article 38(1) (b) of the statute of the International Court of Justice recognized international custom as a source of international law. State practices and usages have a greater role to play in formulating customary international law. This paper examines those state practices which can be qualified to become international customary law. Since, 1979 (after Moon Treaty) no hard law have been developed in the area of space exploration. It tries to link between state practices and custom in space exploration and development of customary international law in space activities. The paper uses doctrinal method of legal research for examining the current questions of international law. The paper explores different international legal documents such as General Assembly Resolutions, Treaty principles, working papers of UN, cases relating to customary international law and writing of jurists relating to space law and customary international law. It is argued that, principles such as common heritage of mankind, non-military zone, sovereign equality, nuclear weapon free zone and protection of outer space environment, etc. developed state practices among the international community which can be qualified to become international customary law.

Keywords: customary international law, state practice, space law, treaty

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Authors: Christopher Muhawe, Masooda Bashir

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With increased Internet Communication Technology(ICT), the virtual world has become the new normal. At the same time, there is an unprecedented collection of massive amounts of data by both private and public entities. Unfortunately, this increase in data collection has been in tandem with an increase in data misuse and data breach. Regrettably, the majority of data breach and data misuse claims have been unsuccessful in the United States courts for the failure of proof of direct injury to physical or economic interests. The requirement to express data privacy harms from an economic or physical stance negates the fact that not all data harms are physical or economic in nature. The challenge is compounded by the fact that data breach harms and risks do not attach immediately. This research will use a descriptive and normative approach to show that not all data harms can be expressed in economic or physical terms. Expressing privacy harms purely from an economic or physical harm perspective negates the fact that data insecurity may result into harms which run counter the functions of privacy in our lives. The promotion of liberty, selfhood, autonomy, promotion of human social relations and the furtherance of the existence of a free society. There is no economic value that can be placed on these functions of privacy. The proposed approach addresses data harms from a psychological and social perspective.

Keywords: data breach and misuse, economic harms, privacy harms, psychological harms

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Authors: Hamid Vahidkia

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Purview has customarily been considered in worldwide law as simply an address of the rights and powers of states. Conceived in this way, the rules onward serve the imperative work of delimiting (whereas tolerating a few covers of) state administrative specialist – the address of when an individual or occasion may be subject to national direction – a work which is shared with the cognate teach of private worldwide law. This article proposes that the thought and the rules of locale in worldwide law require reconceptualization in light of three advancements. The primary is the developing acknowledgment that in an extend of circumstances, the work out of national locale may, beneath worldwide law, be an address of duty or commitment instead of right. The moment advancement is the expanded acknowledgment that such jurisdictional obligations may, in a few circumstances, be owed not as it were to other states but also to private parties, especially through the rise and fortifying of the teachings of refusal of equity and get to equity. The third improvement is the broadly perceived wonder known as party independence, beneath which private parties in the gracious debate have the control to bestow locale on national courts and to decide themselves which law administers their connections. In combination, these improvements propose the need to reexamine the concept of ward in worldwide law to reflect the more complex substances of a worldwide lawful arrangement beneath which states possess both jurisdictional rights and commitments and are not the elite on-screen characters.

Keywords: international law, jurisdiction, purview, preconceptions, commitment

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Authors: Á. L. Bendes

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By the end of the second decade of the 21st century, artificial intelligence (AI) has become an unavoidable part of everyday life and has necessarily aroused the interest of researchers in almost every field of science. This is no different in the case of jurisprudence, whose main task is not only to create its own theoretical paradigm related to AI. Perhaps the biggest impact on digital crime is artificial intelligence. In addition, the need to create legal frameworks suitable for the future application of the law has a similar importance. The prognosis according to which AI can reshape the practical application of law and, ultimately, the entire legal life is also of considerable importance. In the past, criminal law was basically created to sanction the criminal acts of a person, so the application of its concepts with original content to AI-related violations is not expected to be sufficient in the future. Taking this into account, it is necessary to rethink the basic elements of criminal law, such as the act and factuality, but also, in connection with criminality barriers and criminal sanctions, several new aspects have appeared that challenge both the criminal law researcher and the legislator. It is recommended to continuously monitor technological changes in the field of criminal law as well since it will be timely to re-create both the legal and scientific frameworks to correctly assess the events related to them, which may require a criminal law response. Artificial intelligence has completely reformed the world of digital crime. New crimes have appeared, which the legal systems of many countries do not or do not adequately regulate. It is considered important to investigate and sanction these digital crimes. The primary goal is prevention, for which we need a comprehensive picture of the intertwining of artificial intelligence and digital crimes. The goal is to explore these problems, present them, and create comprehensive proposals that support legal certainty.

Keywords: artificial intelligence, chat forums, defamation, international criminal cooperation, social networking, virtual sites

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Authors: Paulino V. Tavares, Ana L. Romao

Abstract:

Public governance, in general, is essential to qualify and educate, pedagogically, the decision-making process of the government in relation to the management of resources and the provision of public services, with transparency and active participation of individuals and citizens for the development of a more democratic environment, besides stimulating control and social empowerment, aiming at the development of the collectivity. In this context, the participation of society in the elaboration, execution, and control of public policies is prominent to strengthen public governance itself. With this, using a multidimensional approach with the application of two questionnaires to a universe of twenty Counselors of the Courts of Auditors (Brazil), twenty professionals of public administration (Brazil), twenty Government/Provincial Counselors (South Africa), and twenty South African professionals of public administration, the preliminary results indicate that the participation of civil society, for both countries, is very low in the elaboration, execution, and control of public policies. At the same time, about 70% of the answers obtained indicate, on average, three possible paths to increase the participation of civil society. With this, it is delineated that developing new horizons to strengthen both public policies how social participation is necessary, but, for both, it is important that governments and civil society, in their respective countries, have an awareness of the effective importance of this interaction.

Keywords: Brazil, civil society, participation, South Africa

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Authors: Girma Y. Iyassu Menelik

Abstract:

“The world is now like a global village!” so goes the saying that shows that due to development and technology the countries of the world are now closely linked. In the field of Human rights there is a close relationship in the way that rights are recognised and enforced. This paper will show that human rights have evolved from ancient times through important landmarks such as the Magna Carta, the French Declaration of Rights of Man and of the Citizen and the American Bill of Rights. The formation of the United Nations after the Second World War resulted in the need to codify and protect human rights. There are some rights which are so fundamental that they are found in international and continental instruments, national constitutions and domestic legislation. In the civil and political sphere they include the right to vote, to freedom of association, speech and assembly, right to life, privacy and fair trial. In the economic and social sphere you have the right to work, protection of the family, social security and rights to education, health and shelter. In some instance some rights can be suspended in times of public emergency but such derogations shall be circumscribed by the law and in most constitutions such limitations are subject to judicial review. However, some rights are so crucial that they cannot be derogated from under any circumstances and these include the right to life, recognition before the law, freedom from torture and slavery and of thought, conscience and religion. International jurisprudence has been developed to protect fundamental rights and avoid discrimination on the grounds of race, colour, sex, language or social origin. The elaborate protection system go to show that these rights have become part of the international order and they have universal application. We have now got to a stage where UDHR, ICCPR and ICESCR and have come to be regarded as part of an international bill of rights with horizontal and vertical enforcement mechanisms involving state parties, NGO’s , international bodies and other organs.

Keywords: rights, international, constitutional, state, judiciary

Procedia PDF Downloads 433

Authors: Amir Shafiq, Asif Shahzad, Shabbar Mehmood, Muhammad Saeed, Hamid Mustafa

Abstract:

Legislation includes the law or the statutes which is being reputable by a sovereign authority and generally can be implemented by the courts of law time to time to accomplish the objectives. Historically speaking upon the emergence of Pakistan in 1947, the intact laws of the British Raj remained effective after ablution by Islamic Ideology. Thus, there was an intention to begin the statutes book afresh for Pakistan's legal history. In consequence thereof, the process of developing detailed plans, procedures and mechanisms to ensure legislative and regulatory requirements are achieved began keeping in view the cultural values and the local customs. This article is an input to the enduring discussion about implementing rule of law in Pakistan whereas; the rule of law requires the harmony of laws which is mostly in the arrangement of codified state laws. Pakistan has legal plural civilizations where completely different and independent systems of law like the Mohammadan law, the state law and the traditional law exist. The prevailing practiced law in Pakistan is actually the traditional law though the said law is not acknowledged by the State. This caused the main problem of the rule of law in the difference between the state laws and the cultural values. These values, customs and so-called traditional laws are the main obstacle to enforce the State law in true letter and spirit which has caused dissatisfaction of the masses and distrust upon the judicial system of the country.

Keywords: consequences, implement, law, Pakistan

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Authors: Ana Lambelho

Abstract:

In an economic crisis such as the one that shook (and still shake) Europe, one does not question the importance of the measures that encourage the hiring and integration of young people into the labour market. In the mentioned context, enterprises tend to reduce the cost of labour and to seek flexible contracting instruments. The professional internships allow innovation and creativity at low cost, because, as they are not labour contracts, the enterprises do not have to respect the minimum standards related to wages, working time duration and so on. In Portugal, we observe a widespread existence of training contracts in which the trainee worked several hours without salary or was paid below the legally prescribed for the function and the work period. For this reason, under the tripartite agreement for a new system of regulation of labour relations, employment policies and social protection, between the Government and the social partners, in June 2008, foresaw a prohibition of professional internships unpaid and the legal regulation of the mandatory internships for access to an activity. The first Act about private internship contracts, i.e., internships without public funding was embodied in the Decree-Law N. 66/2011, of 1^st June. This work is dedicated to the study of the legal regime of the internship contract in Portugal, by analysing the problems brought by the new set of rules and especially those which remains unresolved. In fact, we can conclude that the number of situations covered by the Act is much lower than what was expected, because of the exclusion of the mandatory internship for access to a profession when the activity is developed autonomously. Since the majority of the activities can be developed both autonomously or subordinated, it is quite easy to out of the Act requirements and, so, out of the protection that it confers to the intern. In order to complete this study, we considered not only the mentioned legal Act, but also the few doctrine and jurisprudence about the theme.

Keywords: intern, internship contact, labour law, Portugal

Procedia PDF Downloads 288