Search results for: judicial overreach

Authors: Jennifer Zelmer

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The debate regarding the morality, and therefore legality, of abortion has many social, political, and medical ramifications worldwide. In a developing country like Bolivia, carrying a pregnancy to delivery is incredibly risky. Given the very high maternal mortality rate in Bolivia, greater consideration has been given to the (de)criminalization of abortion – a contributing cause of maternal death. In the spring of 2017, the Bolivian government proposed to loosen restrictions on women’s access to receiving a safe abortion, which was met with harsh criticism from 'pro-vida' (pro-life) factions. Although the current Bolivian government Movimiento al Socialismo (Movement Toward Socialism) portrays an agenda of decolonization, or to seek a 'traditionally-modern' society, nevertheless, Bolivia still has one of the highest maternal mortality rates in the Americas, because of centuries of colonial and patriarchal order. Applying a feminist critique and using the abortion debate as the central point, this paper argues that the 'traditionally-modern' society Bolivia strives towards is a paradox, and in fact only contributes to the reciprocal process of the death of 'mother tongues' and the unnecessary death of women. This claim is supported by a critical analysis of historical texts about Spanish Colonialism in Bolivia; the linguistic reality of reproductive educational strategies, and the philosophical framework which the Bolivian government and its citizens implement. This analysis is demonstrated in the current state of women’s access to reproductive healthcare in Cochabamba, Bolivia based on recent fieldwork which included audits of clinics and hospitals, interviews, and participant observation. This paper has two major findings: 1) the language used by opponents of abortion in Bolivia is not consistent with the claim of being 'pro-life' but more accurately with being 'pro-potential'; 2) when the topic of reproductive health appears in Cochabamba, Bolivia, it is often found written in the Spanish language, and does not cater to the many indigenous communities that inhabit or visit this city. Finally, this paper considers the crucial role of public health documentation to better inform the abortion debate, as well as the necessity of expanding reproductive health information to more than text-based materials in Cochabamba. This may include more culturally appropriate messages and mediums that cater to the oral tradition of the indigenous communities, who historically and currently have some of the highest fertility rates. If the objective of one who opposes abortion is to save human lives, then preventing the death of women should equally be of paramount importance. But rather, the 'pro-life' movement in Bolivia is willing to risk the lives of to-be mothers, by judicial punishment or death, for the chance of a potential baby. Until abortion is fully legal, safe, and accessible, there will always be the vestiges of colonial and patriarchal order in Bolivia which only perpetuates the needless death of women.

Keywords: abortion, feminist theory, Quechua, reproductive health education

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Authors: Deborah A. Hollingworth

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The key tenets associated with ‘environmental justice’, were first articulated in a global context in Principle 10 of the United Nations Declaration on Environment and Development at Rio de Janeiro in 1992 (the Rio Declaration). The elements can be conflated to require: public participation in decision-making; the provision of relevant information to those affected about environmental hazards issues; access to judicial and administrative proceeding; and the opportunity for redress where remedy where required. This paper examines the legislative and regulatory arrangements in place for the implementation these elements in a number of industrialised democracies, including Australia. Most have, over time made regulatory provision for these elements – even if they are not directly attributed Principle 10 or the notion of environmental justice. The paper proposes, that of these elements the most critical to the achievement of good environmental governance, is a legislated recognition and role of public participation. However, the paper considers that notwithstanding sound legislative and regulatory practices, environmental regulators frequently struggle, where there is a complex decision-making scenario or long-standing enmity between a community and industry to achieve effective engagement with the public. This study considers the dilemma confronted by environmental regulators to given meaningful effect to the principles enshrined in Principle 10 – that even when the legislative expression of Principle 10 is adhered to – does not prevent adverse outcomes. In particular, it considers, as a case study a prominent environmental incident in 2014 in Australia in which an open-cut coalmine located in the regional township of Morwell caught fire during bushfire season. The fire, which took 45 days to be extinguished had a significant and adverse impact on the community in question, but compounded a complex, and sometime antagonistic history between the mine and township. The case study exemplifies the complex factors that will often be present between industry, the public and regulatory bodies, and which confound the concept of environmental justice, and the elements of enshrined in the Principle 10 of the Rio Declaration. The study proposes that such tensions and complex examples will commonly be the reality of communities and regulators. However, to give practical effect to outcomes contemplated by Principle 10, the paper considers that regulators will may consider public intervention more broadly as including early interventions and formal opportunities for “conferencing” between industry, community and regulators. These initiatives help to develop a shared understanding and identification of issues. It is proposed that although important, options for “alternative dispute resolution” are not sufficiently preventative, as they come into play when a dispute has arise. Similarly “restorative justice” programs, while important once an incident or adverse environmental outcome has occurred, are post event and therefore necessarily limited. The paper considers the examples of how public participation at the outset – at the time of a proposal, before issues arise or eventuate to ensure, is demonstrably the most effective way for building commonality and an agreed methodology for working to resolve issues once they occur.

Keywords: environmental justice, alternative dispute resolution, domestic environmental law, international environmental law

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Authors: Poulomi Bhadra, Manjushree Palit, Sanjeev P. Sahni

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Forensic science uses all branches of science for criminal investigation and trial and has increasingly emerged as an important tool in the administration of justice. However, the growth and development of this field in India has not been as rapid or widespread as compared to the more developed Western countries. For successful administration of justice, it is important that all agencies involved in law enforcement adopt an inter-professional approach towards forensic science, which is presently lacking. In light of the alarmingly high average acquittal rate in India, this study aims to examine the lack of understanding and appreciation of the importance and scope of forensic evidence and expert opinions amongst law professionals such as lawyers and judges. Based on a study of trial court cases from Delhi and surrounding areas, the study underline the areas in forensics where the criminal justice system has noticeably erred. Using this information, the authors examine the extent of forensic understanding amongst legal professionals and attempt to conclusively identify the areas in which they need further appraisal. A cross-sectional study done using a structured questionnaire was conducted amongst law professionals across age, gender, type and years of experience in court, to determine their understanding of DNA, fingerprints and other interdisciplinary scientific materials used as forensic evidence. In our study, we understand the levels of understanding amongst lawyers with regards to DNA and fingerprint evidence, and how it affects trial outcomes. We also aim to understand the factors that prevent credible and advanced awareness amongst legal personnel, amongst others. The survey identified the areas in modern and advanced forensics, such as forensic entomology, anthropology, cybercrime etc., in which Indian legal professionals are yet to attain a functional understanding. It also brings to light, what is commonly termed as the ‘CSI-effect’ in the Western courtrooms, and provides scope to study the existence of this phenomenon and its effects on the Indian courts and their judgements. This study highlighted the prevalence of unchallenged expert testimony presented by the prosecution in criminal trials and impressed upon the judicial system the need for independent analysis and evaluation of the scientist’s data and/or testimony by the defense. Overall, this study aims to define a clearer and rigid understanding of why legal professionals should have basic understanding of the interdisciplinary nature of forensic sciences. Based on the aforementioned findings, the author suggests various measures by which judges and lawyers might obtain an extensive knowledge of the advances and promising potentialities of forensic science. This includes promoting a forensic curriculum in legal studies at Bachelor’s and Master’s level as well as in mid-career professional courses. Formation of forensic-legal consultancies, in consultation with the Department of Justice, will not only assist in training police, military and law personnel but will also encourage legal research in this field. These suggestions also aim to bridge the communication gap that presently exists between law practitioners, forensic scientists and the general community’s awareness of the criminal justice system.

Keywords: forensic science, Indian legal professionals, interdisciplinary awareness, legal education

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Authors: Gideon Nyuimbe Gasu

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Sub Saharan Africa is at a critical point, experiencing rapid population growth, particularly in urban areas and young growing force. At the same time, the growing risk of catastrophic global climate change threatens to weaken food production system, increase intensity and frequency of drought, flood, and fires and undermine gains on development and poverty reduction. Although the region has the lowest per capital greenhouse gas emission level in the world, it will need to join global efforts to address climate change, including action to avoid significant increases and to encourage a green economy. Thus, there is a need for the concept of 'greening the economy' as was prescribed at Rio Summit of 1992. Renewable energy is one of the criterions to achieve this laudable goal of maintaining a green economy. There is need to address climate change while facilitating continued economic growth and social progress as energy today is critical to economic growth. Fossil fuels remain the major contributor of greenhouse gas emission. Thus, cleaner technologies such as carbon capture storage, renewable energy have emerged to be commercially competitive. This paper sets out to examine how to achieve a low carbon economy with minimal emission of carbon dioxide and other greenhouse gases which is one of the outcomes of implementing a green economy. Also, the paper examines the different renewable energy sources such as nuclear, wind, hydro, biofuel, and solar voltaic as a panacea to the looming climate change menace. Finally, the paper assesses the different renewable energy and energy efficiency as a propeller to generating new sources of income and jobs and in turn reduces carbon emission. The research shall engage qualitative, evaluative and comparative methods. The research will employ both primary and secondary sources of information. The primary sources of information shall be drawn from the sub Saharan African region and the global environmental organizations, energy legislation, policies and related industries and the judicial processes. The secondary sources will be made up of some books, journal articles, commentaries, discussions, observations, explanations, expositions, suggestions, prescriptions and other material sourced from the internet on renewable energy as a panacea to climate change. All information obtained from these sources will be subject to content analysis. The research result will show that the entire planet is warming as a result of the activities of mankind which is clear evidence that the current development is fundamentally unsustainable. Equally, the study will reveal that a low carbon development pathway in the sub Saharan African region should be embraced to minimize emission of greenhouse gases such as using renewable energy rather than coal, oil, and gas. The study concludes that until adequate strategies are devised towards the use of renewable energy the region will continue to add and worsen the current climate change menace and other adverse environmental conditions.

Keywords: carbon dioxide, climate change, legislation/law, renewable energy

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Authors: Olga Kokoulina

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Today, algorithms are assuming a leading role in various areas of decision-making. Prompted by a promise to provide increased economic efficiency and fuel solutions for pressing societal challenges, algorithmic decision-making is often celebrated as an impartial and constructive substitute for human adjudication. But in the face of this implied objectivity and efficiency, the application of algorithms is also marred with mounting concerns about embedded biases, discrimination, and exclusion. In Europe, vigorous debates on risks and adverse implications of algorithmic decision-making largely revolve around the potential of data protection laws to tackle some of the related issues. For example, one of the often-cited venues to mitigate the impact of potentially unfair decision-making practice is a so-called 'right to explanation'. In essence, the overall right is derived from the provisions of the General Data Protection Regulation (‘GDPR’) ensuring the right of data subjects to access and mandating the obligation of data controllers to provide the relevant information about the existence of automated decision-making and meaningful information about the logic involved. Taking corresponding rights and obligations in the context of the specific provision on automated decision-making in the GDPR, the debates mainly focus on efficacy and the exact scope of the 'right to explanation'. In essence, the underlying logic of the argued remedy lies in a transparency imperative. Allowing data subjects to acquire as much knowledge as possible about the decision-making process means empowering individuals to take control of their data and take action. In other words, forewarned is forearmed. The related discussions and debates are ongoing, comprehensive, and, often, heated. However, they are also frequently misguided and isolated: embracing the data protection law as ultimate and sole lenses are often not sufficient. Mandating the disclosure of technical specifications of employed algorithms in the name of transparency for and empowerment of data subjects potentially encroach on the interests and rights of IPR holders, i.e., business entities behind the algorithms. The study aims at pushing the boundaries of the transparency debate beyond the data protection regime. By systematically analysing legal requirements and current judicial practice, it assesses the limits of the transparency requirement and right to access posed by intellectual property law, namely by copyrights and trade secrets. It is asserted that trade secrets, in particular, present an often-insurmountable obstacle for realising the potential of the transparency requirement. In reaching that conclusion, the study explores the limits of protection afforded by the European Trade Secrets Directive and contrasts them with the scope of respective rights and obligations related to data access and portability enshrined in the GDPR. As shown, the far-reaching scope of the protection under trade secrecy is evidenced both through the assessment of its subject matter as well as through the exceptions from such protection. As a way forward, the study scrutinises several possible legislative solutions, such as flexible interpretation of the public interest exception in trade secrets as well as the introduction of the strict liability regime in case of non-transparent decision-making.

Keywords: algorithms, public interest, trade secrets, transparency

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Authors: Sricheta Chowdhury

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To require a woman to choose between her work and her personal life is the most acute form of discrimination that can be meted out against her. No woman should be given a choice to choose between her motherhood and her career at Bar, yet that is the most detrimental discrimination that has been happening in Indian Bar, which no one has questioned so far. The falling number of women in practice is a reality that isn’t garnering much attention given the sharp rise in women studying law but is not being able to continue in the profession. Moving from a colonial misogynist whim to a post-colonial “new-age construct of Indian woman” façade, the policymakers of the Indian Judiciary have done nothing so far to decolonize itself from its rudimentary understanding of ‘equality of gender’ when it comes to the legal profession. Therefore, when Indian jurisprudence was (and is) swooning to the sweeping effect of transformative constitutionalism in the understanding of equality as enshrined under the Indian Constitution, one cannot help but question why the legal profession remained out of brushing effect of achieving substantive equality. The Airline industry’s discriminatory policies were not spared from criticism, nor were the policies where women’s involvement in any establishment serving liquor (Anuj Garg case), but the judicial practice did not question the stereotypical bias of gender and unequal structural practices until recently. That necessitates the need to examine the existing Bar policies and the steps taken by the regulatory bodies in assessing the situations that are in favor or against the purpose of furthering women’s issues in present-day India. From a comparative feminist point of concern, South Africa’s pro-women Bar policies are attractive to assess their applicability and extent in terms of promoting inclusivity at the Bar. This article intends to tap on these two countries’ potential in carving a niche in giving women an equal platform to play a substantive role in designing governance policies through the Judiciary. The article analyses the current gender composition of the legal profession while endorsing the concept of substantive equality as a requisite in designing an appropriate appointment process of the judges. It studies the theoretical framework on gender equality, examines the international and regional instruments and analyses the scope of welfare policies that Indian legal and regulatory bodies can undertake towards a transformative initiative in re-modeling the Judiciary to a more diverse and inclusive institution. The methodology employs a comparative and analytical understanding of doctrinal resources. It makes quantitative use of secondary data and qualitative use of primary data collected for determining the present status of Indian women legal practitioners and judges. With respect to quantitative data, statistics on the representation of women as judges and chief justices and senior advocates from their official websites from 2018 till present have been utilized. In respect of qualitative data, results of the structured interviews conducted through open and close-ended questions with retired lady judges of the higher judiciary and senior advocates of the Supreme Court of India, contacted through snowball sampling, are utilized.

Keywords: gender, higher judiciary, legal profession, representation, substantive equality

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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: Jose L. Diego, Antonio Berlanga, Gregorio López, Diana López

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The Rayuela method is a success story, as it is part of a project selected by the European Commission to face the challenge launched by itself for achieving a better understanding of human factors, as well as social and organisational aspects that are able to solve issues in fighting against crime. Rayuela's method specifically focuses on the drivers of cyber criminality, including approaches to prevent, investigate, and mitigate cybercriminal behavior. As the internet has become an integral part of young people’s lives, they are the key target of the Rayuela method because they (as a victim or as a perpetrator) are the most vulnerable link of the chain. Considering the increased time spent online and the control of their internet usage and the low level of awareness of cyber threats and their potential impact, it is understandable the proliferation of incidents due to human mistakes. 51% of Europeans feel not well informed about cyber threats, and 86% believe that the risk of becoming a victim of cybercrime is rapidly increasing. On the other hand, Law enforcement has noted that more and more young people are increasingly committing cybercrimes. This is an international problem that has considerable cost implications; it is estimated that crimes in cyberspace will cost the global economy $445B annually. Understanding all these phenomena drives to the necessity of a shift in focus from sanctions to deterrence and prevention. As a research project, Rayuela aims to bring together law enforcement agencies (LEAs), sociologists, psychologists, anthropologists, legal experts, computer scientists, and engineers, to develop novel methodologies that allow better understanding the factors affecting online behavior related to new ways of cyber criminality, as well as promoting the potential of these young talents for cybersecurity and technologies. Rayuela’s main goal is to better understand the drivers and human factors affecting certain relevant ways of cyber criminality, as well as empower and educate young people in the benefits, risks, and threats intrinsically linked to the use of the Internet by playing, thus preventing and mitigating cybercriminal behavior. In order to reach that goal it´s necessary an interdisciplinary consortium (formed by 17 international partners) carries out researches and actions like Profiling and case studies of cybercriminals and victims, risk assessments, studies on Internet of Things and its vulnerabilities, development of a serious gaming environment, training activities, data analysis and interpretation using Artificial intelligence, testing and piloting, etc. For facilitating the real implementation of the Rayuela method, as a community policing strategy, is crucial to count on a Police Force with a solid background in trust-building and community policing in order to do the piloting, specifically with young people. In this sense, Valencia Local Police is a pioneer Police Force working with young people in conflict solving, through providing police mediation and peer mediation services and advice. As an example, it is an official mediation institution, so agreements signed by their police mediators have once signed by the parties, the value of a judicial decision.

Keywords: fight against crime and insecurity, avert and prepare young people against aggression, ICT, serious gaming and artificial intelligence against cybercrime, conflict solving and mediation with young people

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