Search results for: Judiciary Acts 1789

Authors: Fethia Braik

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This paper summarizes the history of the US Supreme Court. It did not enjoy today’s status. It did neither control legislation nor the executive power. It was until 1803, during Marshall’s term, that it gained the pride of ruling over the constitutionality of acts be they federal or local, congressional or presidential. The Chief Justice, whether intended or not, vested such power in the supreme judicial institution via the case of Marbury v. Madison. Such power, nevertheless, had not been exercised for many years, till the Dred Scott case.

Keywords: Judiciary Acts 1789, 1801, chief justice, associate justice, justice of peace, review of constitutionality of acts, Jay court, Ellsworth court, Marshall court

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Authors: D. Avnieli

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Immunity of judges from liability represents a departure from the principle that all are equal under the law, and that victims may be granted compensation from their offenders. The purpose of the study is to determine if judicial immunity coincides with the need to ensure the existence of highly independent and incorruptible judiciary. Judges are immune from civil and criminal liability for their judicial acts. Judicial immunity is justified by the need to maintain complete independence and discretion of the judiciary. Scholars and judges believe that absolute immunity is needed to shield judges from pressures, threats, or outside interference. It is commonly accepted, that judges should be free to perform their judicial role in accordance with their assessment of the fact and their understanding of the law, without any restrictions, influences, inducements or interferences. In most countries, immunity applies when judges act in excess of jurisdiction. In some countries, it applies even when they act maliciously or corruptly. The only exception to absolute immunity applicable in all judicial systems is when judges act without jurisdiction over the subject matter. The Israeli Supreme Court recently decided to embrace absolute immunity and strike off a lawsuit of a refugee, who was unlawfully incarcerated. The Court ruled that the plaintiff cannot sue the State or the judge for damages. The questions of malice, dignity, and public scrutiny were not discussed. This paper, based on comparative analysis of many cases, aims to determine if immunity affects the dignity and behavior of judges. It demonstrates that most judges maintain their dignity and ethical code of behavior, but sometimes do not hesitate to act consciously in excess of jurisdiction, and in rare cases even corruptly. Therefore, in order to maintain independent and incorruptible judiciary, immunity should not be applied where judges act consciously in excess of jurisdiction or with malicious incentives.

Keywords: incorruptible judiciary, immunity, independent, judicial, judges, jurisdiction

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Authors: Serges Djoyou Kamga, Gerard Emmanuel Kamdem Kamga

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Any serious constitutionalism entails a system of government characterised by the separation of powers between the executive, the legislature, and the judiciary. The latter is generally in charge of upholding the rule of law and the respect for human rights which are vital for the functioning of any democracy. Therefore, for the judiciary to play its role as a watchdog, it should be independent from other branches of government. The aim of this paper is to examine the independence of the judiciary in South Africa after 20 of democracy. Defining judicial independence as the courts’ ability ‘to decide cases on the basis of established law and the merits of the case, without interference from other political or governmental agents’, the paper examines the extent to which the South African judiciary is independent after twenty years of democracy. As part of assessing the independence of the judiciary, the paper begins by looking at the situation during apartheid, then proceeds with an examination of the post-apartheid legal order. It also examines the institutional independence of the judiciary by looking into its day to day activities which revolve around its self-governance, or administrative and financial independence. In addition, the paper assesses the judges’ individual independence by examining whether judicial appointment, security of tenure, judges’ remuneration and disciplinary actions and the removal of judges from office do not contain loopholes that can hinder judicial independence. Ultimately, the chapter argues that although the South African model of judicial independence is yet to be perfect, it is a good practice that can be emulated by other African countries.

Keywords: judical independence, South Africa, democracy, separation of powers

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

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Administration of justice in a society is evolutionary process. In pre-modern societies vital organs that we consider separate today i.e. legislation, implementation and adjudication were controlled by a King, the sovereign authority. Whereas now it is recognized that Development of a country revolves in seven arenas i.e. Civil Society, Political Society, Economic Society, Legislature, Judiciary, Executive & Bureaucracy. Each society whether developing or developed, has need of institutions and structures that can resolve difference of opinions of private or public nature between contending parties. Administration of justice has a key-role in the development of the society. Through this paper, it is to highlight that an independent judiciary having the support of public opinion therefore is inevitable to wriggle out from such problems in order to restore and protect the fundamental rights, constitution and democratic political system in third world countries like Pakistan.

Keywords: role of judiciary, developing countries, judicial activism, present scenario

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Authors: Botirjon Kosimov

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This work sheds light on the reforms towards the independence of the judiciary in Uzbekistan, as well as issues of further ensuring judicial independence in the country based on international values, particularly the legal practice of the United States. In every democratic state infringed human rights are reinstated and violated laws are protected by the help of justice based on the strict principle of judicial independence. The realization of this principle in Uzbekistan has been paid much attention since the proclamation of its independence. In the country, a series of reforms have been implemented in the field of the judiciary in order to actualize the principle of judicial independence. Uzbekistan has been reforming the judiciary considering both international and national values and practice of foreign countries. While forming a democratic state based on civil society, Uzbekistan shares practice with the most developed countries in the world. The United States of America can be a clear example which is worth learning how to establish and ensure an independent judiciary. It seems that although Uzbekistan has reformed the judiciary efficiently, it should further reform considering the legal practice of the United States.

Keywords: dependent judges, independent judges, judicial independence, judicial reforms, judicial life tenure, obstacles to judicial independence

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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: Aulia Rosa Nasution

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This research aims to analyze the involvement of the Indonesian Armed Forces in overcoming terrorism acts under legal perspectives based on Acts No. 34 of 2004, which regulates the role and mechanism of the Indonesian Armed Forces in combating terrorism. The main question of this research is, firstly, the military authority in combating terrorism acts, secondly, the implementation of Acts Number 34/2000, and thirdly, law enforcement to combat terrorism under national and international law. The methodology of this research is juridical normative based on the legal instruments and legal principles, and international norms. The result of this study explains the involvement of the Indonesian Army in combating terrorism as a part of the nonmilitary operation which has been implemented in Indonesia as part of national defence and security.

Keywords: acts of terrorism, Indonesian armed forces, legal protection

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Authors: Tinatin Kurdghelashvili

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The paper deals with the usage of speech acts and politeness strategies in an EFL classroom in Georgia (Rep of). It explores the students’ and the teachers’ practice of the politeness strategies and the speech acts of apology, thanking, request, compliment/encouragement, command, agreeing/disagreeing, addressing and code switching. The research method includes observation as well as a questionnaire. The target group involves the students from Georgian public schools and two certified, experienced local English teachers. The analysis is based on Searle’s Speech Act Theory and Brown and Levinson’s politeness strategies. The findings show that the students have certain knowledge regarding politeness yet they fail to apply them in English communication. In addition, most of the speech acts from the classroom interaction are used by the teachers and not the students. Thereby, it is suggested that teachers should cultivate the students’ communicative competence and attempt to give them opportunities to practice more English speech acts than they do today.

Keywords: english as a foreign language, Georgia, politeness principles, speech acts

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Authors: Mbuzeni Mathenjwa

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

Keywords: Africa, constitutions, independence, judiciary

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Authors: Raja Al-Khalili

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Traveling abroad for British citizens in the eighteenth century was usually performed for two reasons. The first major form was for administering the expanding realm of the British Empire and its need for officials in governing the natives and facilitating the work of business companies. The other form of travel was for pleasure and involved a manifestation of wealth. This form of travel was a prelude for the modern industry of tourism and usually involved a tour of Europe and the Mediterranean. In both forms of travel the British encountered a myriad of cultures. Travel had fostered a sense of pride and confirmed an ethnocentric view of British superiority, but it also brought a critical self-examination of belonging to a colonial empire that thrives on the weaknesses of other nations. Women writers in particular have sought in the travels a kind of self-exploration of the nature of social patriarchy in a diversity of cultures. Both Lady Elizabeth Craven in A Journey through the Crimea to Constantinople (1789) and Lady Mary Wortley Montagu in Embassy Letters (1716-1718) have observed the culture of the Ottomans and then pursued to reflect on the social role of women in England.

Keywords: travel writing, Elizabeth Craven, Lady Mary Wortley, patriarchy

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Authors: N. Sathish Gowda

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A constitution without fundamental rights will become zero. The very object of constitution of three organs viz, legislature, executive and judiciary under the constitution of India is to protect, preserve and promote fundamental rights guaranteed under part-III. In India, along with express fundamental rights, Supreme Court has also recognized implied fundamental rights. But, unfortunately State has not been implementing these implied fundamental rights. In this regard, this research paper discusses the catalogue of implied fundamental rights evolved by the judiciary in interpreting Article 21 of the Constitution of India and seeks to examine the effects and applicability of these rights in India.

Keywords: fundamental rights, nuances of Article 21, express fundamental rights, implied fundamental rights, procedure established by law

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Authors: Paiboon Chuwatthanakij

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In reference to the legal state in the Thai legal system, most people understand the minor principles of the legal state form, which are the principles that can be explained and understood easily and the results can be seen clearly, especially in the legitimacy of administrative acts. Therefore, there is no awareness of justice, which is the fundamental value of Thai law. The legitimacy of administrative acts requires the administration to adhere to the constitution and legislative laws in enforcement of the laws. If it appears that the administrative acts are illegitimate, the administrative court, as the court of justice, will revoke those acts as if they had never been set in the legal system, this will affect people’s trust as they are unaware as to whether the administrative acts that appoint their lives are legitimate or not. Regarding the revocation of administrative orders by the administrative court as if those orders had never existed, the common individual surely cannot be expected to comprehend the security of their juristic position. Therefore, the legal state does not require a revocation of the government’s acts to terminate its legal results merely because those acts are illegitimate, but there should be considerations and realizations regarding the “The Principle of the Protection of Legitimate Expectation,” which is a minor principle in the legal state’s content that focuses on supporting and protecting legitimate expectations of the juristic position of an individual and maintaining justice, which is the fundamental value of Thai law

Keywords: legal state, rule of law, protection of legitimate, adjudication

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Authors: Abdul Salim Amin

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This paper focuses on how judiciaries in post-conflict society gain legitimacy through reformation. Legitimacy plays a pivotal role in shaping peoples’ behavior to submit to the law and verifies the rightfulness of an organ for taking binding decisions. Among various dynamics, judicial independence, access to justice and behavioral changes of the judicial officials broadly contribute in legitimation of judiciary in general, and the court in particular. Increasing the independence of judiciary through reform limits the interference of governmental branches in judicial issues and protects basic rights of the citizens. Judicial independence does not only matter in institutional terms, individual independence also influences the impartiality and integrity of judges, which can be increased through education and better administration of justice. Finally, access to justice as an intertwined concept both at the legal and moral spectrum of judicial reform avails justice to the citizen and increases the level of public trust and confidence. Efficient legal decisions on fostering such elements through holistic reform create a rule of law atmosphere. Citizens do not accept illegitimate judiciary and do not trust its decisions. Lack of such tolerance and confidence deters the rule of law and, thus, undermines the democratic development of a society.

Keywords: legitimacy, judicial reform, judicial independence, access to justice, legal training, informal justice, rule of law

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Authors: Caroline Foulquier-Expert

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

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

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Authors: Dalson Figueiredo, Enivaldo Rocha, Ranulfo Paranhos, José Alexandre

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This paper analyzes the effects of institutional capacity on corruption. Methodologically, the research design combines both descriptive and multivariate statistics to examine two original datasets based on secondary data. In particular, we employ a principal component model to estimate an indicator of institutional capacity for both state audit institutions and subnational judiciary courts. Then, we estimate the effect of institutional capacity on two dependent variables: (1) incidence of administrative irregularities and (2) time elapsed to judge corruption cases. The preliminary results using ordinary least squares, negative binomial and Tobit models suggest the same conclusions: higher the institutional audit capacity, higher is the probability of detecting a corruption case. On the other hand, higher the institutional capacity of state judiciary, the lower is the time to judge corruption cases.

Keywords: institutional capacity, corruption, state level institutions, evidence from Brazil

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Authors: Ericson O. Alieto, Aprillete C. Devanadera

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The main objective of the study is to determine the dominant speech acts in five commemorative speeches of President Duterte. This study employed Speech Act Theory and Discourse analysis to determine how the speech acts features connote the pragmatic meaning of Duterte’s speeches. Identifying the speech acts is significant in elucidating the underlying message or the pragmatic meaning of the speeches. From the 713 sentences or utterances from the speeches, assertive with 208 occurrences from the corpus or 29% is the dominant speech acts. It was followed by expressive with 177 or 25% occurrences, directive accounts for 152 or 15% occurrences. While commisive accounts for 104 or 15% occurrences and declarative got the lowest percentage of occurrences with 72 or 10% only. These sentences when uttered by Duterte carry a certain power of language to move or influence people. Thus, the present study shows the fundamental message perceived by the listeners. Moreover, the frequent use of assertive and expressive not only explains the pragmatic message of the speeches but also reflects the personality of President Duterte.

Keywords: commemorative speech, discourse analysis, duterte, pragmatics

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Authors: Sudhir K. Gupta

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Introduction: When a forensic doctor determines that a suspicious death is a suicide, homicide, or accident, the decision virtually becomes incontestable by the investigating police officer, and it becomes an issue whether the medical opinion was created with necessary checks and balances on the other probabilities of the case. It is suggested that the opinion of Forensic Medical experts is conventional, mutable, and shifting from one expert to another. The determination of suicide, accident, or homicide is mandatorily required, which is the Gold Standard for conducting death investigations. Forensic investigations serve many audiences, but the court is by far the most critical. The likely questions on direct and cross-examination determine how forensic doctors gather and handle evidence and what conclusions they reach. Methodology: The author interacted with the investigative authority, and a crime scene visit was also done along with the perusal of the Postmortem report, subsequent opinion, and crime scene photographs and statements of the witness and accused. Further analysis of all relevant scientific documents and opinions of other forensic doctors, forensic scientists, and ballistic experts involved in these cases was done to arrive at an opinion with scientific justification. Findings: The opinions arrived at by the author and how they helped the judiciary in delivering justice in these cases have been discussed in this article. This can help the readers to understand the process involved in formulating a credible forensic medical expert opinion for investigators and the judiciary. Conclusion: A criminal case might be won or lost over doubt cast on the chain of custody. Medically trained forensic doctors, therefore, learn to practice their profession in legally appropriate ways, and opinions must be based on medical justifications with credible references.

Keywords: forensic doctor, professional credibility, investigation, expert opinion

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Authors: Sajedeh Salehi, Marco Giacalone

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This paper examines the role of existing online dispute resolution (ODR) mechanisms and their effects on ameliorating access to justice – as a protected right by Art. 47 of the EU Charter of Fundamental Rights – for consumers in EU. The major focus of this study will be on evaluating ODR as the means of dispute resolution for Business-to-Consumer (B2C) cross-border small claims raised in e-commerce transactions. The authors will elaborate the consequences of implementing ODR methods in the context of recent developments in EU regulatory safeguards on promoting consumer protection. In this analysis, both non-judiciary and judiciary ODR redress mechanisms are considered, however, the significant consideration is given to – obligatory and non-obligatory – judiciary ODR methods. For that purpose, this paper will particularly investigate the impact of the EU ODR platform as well as the European Small Claims Procedure (ESCP) Regulation 861/2007 and their role on accelerating the access to justice for consumers in B2C e-disputes. Although, considerable volume of research has been carried out on ODR for consumer claims, rather less (or no-) attention has been paid to provide a combined doctrinal and empirical evaluation of ODR’s potential in resolving cross-border small e-disputes, in EU. Hence, the methodological approach taken in this study is a mixed methodology based on qualitative (interviews) and quantitative (surveys) research methods which will be mainly based on the data acquired through the findings of the Small Claims Analysis Net (SCAN) project. This project contributes towards examining the ESCP Regulation implementation and efficiency in providing consumers with a legal watershed through using the ODR for their transnational small claims. The outcomes of this research may benefit both academia and policymakers at national and international level.

Keywords: access to justice, consumers, e-commerce, small e-Disputes

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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: Charlotte Lülf

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Migration flows, resulting from war, climate change or economic crisis cannot be tackled by single states but need to be addressed as a transnational and international responsibility. The traditional architecture surrounding the work of the UNHCR and the 1951 Convention, however, is not equipped to deal with these challenges. Widely excluded from legal protection are people not individually persecuted for the statutory criteria, people that flee from the indiscriminate effects of an armed conflict as well as people fleeing natural disasters. With the lack of explicit legal protection and the political reluctance of nation states worldwide to extend their commitment in new asylum laws, the judiciary must be put in focus: it plays a unique role in interpreting and potentially expanding the application of existing regulations. This paper as part of an ongoing Ph.D. Project deals with the current and partly contradicting approaches to the protection of war- and climate refugees. Changing jurisprudential practice of national and regional courts will be assessed, as will be their dialogue to interpret the international obligations of human rights law, migration laws, and asylum laws in an interacting world. In recent judgments refoulment to an armed conflict as well as countries without adequate disaster relief or health care was argued as violating fundamental human and asylum law rights and therefore prohibited – even for applicants without refugee status: The first step towards access to subsidiary protection could herewith be established. Can one observe similar developments in other parts of the world? This paper will evaluate the role of the judiciary to define, redefine and potentially expand protection for people seeking refuge from armed conflicts and natural disasters.

Keywords: human rights law, asylum-seekers, displacement, migration

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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: Zakari Mustapha, Clinton Aigbavboa, Wellington Didi Thwala

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Majority of the incidents and accidents in complex high-risk systems that exist in the construction industry and other sectors have been attributed to unsafe acts of workers. The purpose of this paper was to asses Human Factors Analysis and Classification System (HFACS) in construction accident prevention. The study was conducted through the use of secondary data from journals, books and internet to achieve the objective of the study. The review of literature looked into details of different views from different scholars about HFACS framework in accidents investigations. It further highlighted on various sections or disciplines of accident occurrences in human performance within the construction. The findings from literature review showed that unsafe acts of a worker and unsafe working conditions are the two major causes of accident in the construction industry.Most significant factor in the cause of site accident in the construction industry is unsafe acts of a worker. The findings also show how the application of HFACS framework in the investigation of accident will lead to the identification of common trends. Further findings show that provision for the prevention of accident will be made based on past accident records to identify and prioritize where intervention is needed within the construction industry.

Keywords: accident, construction, HFACS, unsafe acts

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Authors: Mawande Dlali

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This paper examines the request strategies in commuter discourse involving taxi drivers and passengers in Khayelitsha as well as the responses to these requests. The present study considers requests in commuter transport as face threatening acts (FTAs), hence the need for the commuter crew to strategically shape their communicative actions to achieve their overall discourse goal of getting passengers to perform actions that are in their own interest with minimum resistance or confrontation. The crew presents itself by using communicative devices that prompt the passengers to evaluate it positively as warm, friendly, and respectful. However, the passengers' responses to requests range from compliance to resistance depending on their interpretation of the speaker’s motive and the probable social consequences. Participant observation by the researcher was the main method of collecting examples of requests and responses to the requests. Unstructured interviews and informal discussions were made with randomly selected taxi drivers and commuters. The findings and explanations presented in this article revealed the predominance of polite requests as speech acts in taxi discourse in Khayelitsha. This research makes a contribution to the contemporary pragmatics study of African languages in urban context.

Keywords: face threatening acts, speech acts, request strategies, discourse

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Authors: Thiago R. Pereira

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The philosophical hermeneutics is able to change the Brazilian Judiciary because of the understanding of the characteristics of the human being. It is impossible for humans, to be invested in the function of being a judge, making absolutely neutral decisions, but the philosophical hermeneutics can assist the judge making impartial decisions, based on the federal constitution. The normative legal positivism imagined a neutral judge, a judge able to try without any preconceived ideas, without allowing his/her background to influence him/her. When a judge arbitrates based on legal rules, the problem is smaller, but when there are no clear legal rules, and the judge must try based on principles, the risk of the decision is based on what they believe in. Solipsistically, this issue gains a huge dimension. Today, the Brazilian judiciary is independent, but there must be a greater knowledge of philosophy and the philosophy of law, partially because the bigger problem is the unpredictability of decisions made by the judiciary. Actually, when a lawsuit is filed, the result of this judgment is absolutely unpredictable. It is almost a gamble. There must be the slightest legal certainty and predictability of judicial decisions, so that people, with similar cases, may not receive opposite sentences. The relativism, since classical antiquity, believes in the possibility of multiple answers. Since the Greeks in in the sixth century before Christ, through the Germans in the eighteenth century, and even today, it has been established the constitution as the great law, the Groundnorm, and thus, the relativism of life can be greatly reduced when a hermeneut uses the Constitution as North interpretational, where all interpretation must act as the hermeneutic constitutional filter. For a current philosophy of law, that inside a legal system with a Federal Constitution, there is a single correct answer to a specific case. The challenge is how to find this right answer. The only answer to this question will be that we should use the constitutional principles. But in many cases, a collision between principles will take place, and to resolve this issue, the judge or the hermeneut will choose a solipsism way, using what they personally believe to be the right one. For obvious reasons, that conduct is not safe. Thus, a theory of decision is necessary to seek justice, and the hermeneutic philosophy and the linguistic turn will be necessary for one to find the right answer. In order to help this difficult mission, it will be necessary to use philosophical hermeneutics in order to find the right answer, which is the constitutionally most appropriate response. The constitutionally appropriate response will not always be the answer that individuals agree to, but we must put aside our preferences and defend the answer that the Constitution gives us. Therefore, the hermeneutics applied to Law, in search constitutionally appropriate response, should be the safest way to avoid judicial individual decisions. The aim of this paper is to present the science of law starting from the linguistic turn, the philosophical hermeneutics, moving away from legal positivism. The methodology used in this paper is qualitative, academic and theoretical, philosophical hermeneutics with the mission to conduct research proposing a new way of thinking about the science of law. The research sought to demonstrate the difficulty of the Brazilian courts to depart from the secular influence of legal positivism. Moreover, the research sought to demonstrate the need to think science of law within a contemporary perspective, where the linguistic turn, philosophical hermeneutics, will be the surest way to conduct the science of law in the present century.

Keywords: hermeneutic, right answer, solipsism, Brazilian judiciary

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Authors: Jacquelene Swanepoel, J. C. Visagie, H. M. Linde

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Purpose: The aim of this article is to investigate the psychosocial risk environment influencing employee behaviour, and subsequently the trust relationship between employer and employee. Design/methodology/approach: The unique nature and commonness of negative acts, such as unsafe behaviour, human errors, poor performance and negligence, also referred to as unsafe practice, are explored. A literature review is formulated to investigate the nature of negative acts or unsafe behaviour. The findings of this study are used to draw comparisons between unsafe behaviour/misconduct and accidents in the workplace and finally conclude how it should be addressed from a labour relations point of view. Findings: The results indicate comparisons between unsafe practice/misconduct and occupational injuries and accidents, as a result of system flaws, human error or psychosocial risk.

Keywords: occupational risks, unsafe practice, misconduct, organisational safety culture, ergonomics, management commitment and leadership, labour relations

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Authors: Dini Dewi Heniarti

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Military Court which is a judicial institution within the military institution has a heavy duty. Military court has to ensuring a fair legal process for military personnel (due process of law) and enforces military discipline. Military justice must also ensure protects the rights of military personnel. In Indonesia tren of military court changes in vision. The debate is happened on the jurisdiction of military court that allegedly has the potential existence of impunity. The Decree of People’s Consultative Assembly Number VII/MPR/2000 which states that the army general who committed the crime should not be tried in military court is one that underlies the proposed amendment limits the jurisdiction of military court. For the identify of the background in a specific format that is limited to juridical review. The goals this research is to gain knowledge, deep understanding and the concept of jurisdiction of military courts for military members who committed general crimes in adjudication procedure from the perspective of legal reform as alternative to establish independency of military judiciary. This research using Rule of Law as Grand Theory, Development Legal Theory as a Middle Theory and Criminal Justice System and concept of jurisdiction as supporting as Applied Theory. This study using a normative juridical approach, and equipped by primary data juridical approach of historical and comparative approach. The author uses descriptive analytical specifications. The main data used in this research is secondary data, which includes primary legal materials, secondary legal material and legal materials tertiary. Analysis primary data and qualitative data is done legally. Technique checking the validity of the data in this study used multiple methods with the research triangulation. This paper will demonstrate the problems concerning the jurisdiction of military courts for military personnel who committed general crimes in perspective of military justice reform Indonesia and adjudication procedures for military member who committed general crimes in the military justice system in Indonesia, as alternative to establish independency of judiciary in military justice in Indonesia. Comparative approached the military justice system from another countries is aimed to development military justice in Indonesia.

Keywords: jurisdiction, military courts, military justice, independency of judiciary

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Authors: Werner Roux Uys

Abstract:

The Commissioner for the South African Revenue Service (SARS) holds a high position of trust in South African society and a lack of trust by taxpayers in the Commissioner’s actions or conduct could compromise SARS’ management of public finances. Tax morality – which is implicit in the social contract between taxpayers and the state – includes distinct phenomena that can cause a breakdown if there is a perceived lack of action on the part of the Commissioner to ensure public finances are kept safe. To promote tax morality, the Commissioner must support the judiciary in the exercise of its discretion to punish fraudulent tax activities and corrupt tax practices. For several years the political meddling in the Commissioner’s actions and conduct have caused perceived abuse of power at SARS, and taxpayers believed their hard-earned income paid over to SARS would be fruitless and wasteful expenditure. The purpose of this article is to identify and analyse previous decisions held by the South African judiciary regarding the Commissioner’s actions and conduct in tax matters, as well as consider important political statements and newspaper bulletins for the purpose of this research. The study applies a qualitative research approach and exploratory case study technique. Keywords were selected and inserted in the LexisNexis electronic database to systematically identify applicable case law where the ratio decidendi of the court referred to the actions and/or conduct of the Commissioner. Specific real-life statements, including political statements and newspaper bulletins, were selected to support the topic at hand. The purpose of the study is to educate the public about the perceptions that have transformed taxpayers’ behaviour towards the Commissioner for SARS since South Africa’s fledgling constitutional democracy was inaugurated in 1994. The study adds to the literature by identifying key characteristics or distinct phenomena regarding the actions and conduct of the Commissioner affecting taxpayers’ behaviour, including discretionary decision-making. From the findings, it emerged that SARS must abide by its (own) laws and that there is a need to educate not only South African taxpayers about tax morality, but also the public in general.

Keywords: commissioner, SARS, action and conduct, judiciary, discretionry, decsion-making

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Authors: Alexander Cramer, Kenneth Cramer

Abstract:

Since the inauguration of President George Washington in 1789, the United States of America has seen the governance of some 44 individual presidents. Although such presidents share a variety of attributes, they still differ from one another on many others. Significantly, these traits may be used to construct distinct sets of 'families' of presidents throughout American history. By comparatively analyzing data from experts on the U.S. presidency – in this case, the C-SPAN Presidential Historians Surveys from 2000, 2009, and 2017 – this article identifies a consistent set of six presidential families: the All Stars; the Conservative Visionaries; the Postwar Progressives; the Average Joes; the Forgettables; and the Regrettables. In situating these categories in history, this article argues that U.S. presidents can be accurately organized into cohesive, like-performing families whose constituents share a common set of criteria.

Keywords: C-SPAN, POTUS presidential performance, presidential ranking, presidential studies, presidential surveys, United States

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Authors: Rubaiyat Jahan

Abstract:

This paper reports some findings of a study on the issues related to teacher autonomy in the Bangladeshi school contexts, and data of this research was collected from fourteen practicing English teachers of Bangladesh through semi structured interviews. The theoretical underpinning of teacher autonomy, on an apparent note, focuses on the behavioral aspects of teacher autonomy hence emphasizing mostly on the teachers’ capacity for self-directed acts of teaching and self-directed acts of professional development. Yet, a contemporary literature survey of teacher autonomy seems to be concerned more on the political interpretations of teacher autonomy. Thus, autonomous teachers are expected to generate their personal theories of teaching from their practices. The idea of personal theories of practice upholds the view that along with the teaching, teachers need to engage themselves in various classroom based research with a view to theorising from their practices. The findings of this research indicate enormous evidence of behavioral aspects of teacher autonomy. As the data of this research suggests, the participant teachers’ understanding of classroom situations, their reflections on the situational realities and opting for classroom decisions on the basis of those realizations are some good examples of teacher autonomy. Also, a few teachers’ stated teaching practices seem to reflect, though in a subtle way, their effort of outlining context embedded personal theories of teaching. This paper has got one significant pedagogical implication for the teacher education. Any teacher education must promote the conditions and capabilities for the present and prospective teachers for the role of theorisers in addition to develop their professional, procedural, and personal knowledge base.

Keywords: personal theories of practice, self-directed acts of professional development, self-directed acts of teaching, teacher autonomy

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Authors: Dorota Habrat

Abstract:

In Polish law, the idea of the introduction of corporate responsibility for crimes is becoming more popular and creates a lot of questions. The need to introduce into the Polish legal system liability of corporate (collective entities) has resulted, among others, from the Polish Republic's international commitments, in particular related to membership in the European Union. The Act of 28 October 2002 on the liability of collective entities for acts prohibited under penalty is one of the example of adaptation of Polish law to Community law. Introduction to Polish law a criminal nature liability of corporations (legal persons) has resulted in a lot of controversy and lack of acceptance from both the scientific community as well as the judiciary. The responsibility of collective entities under the Act has a criminal nature. The main question concerns the ability of the collective entity to be brought to guilt under criminal law sense. Polish criminal law knows only the responsibility of individual persons. So far, guilt as a personal feature of action, based on the ability of the offender to feel in his psyche, could be considered only in relation to the individual person, while the said Act destroyed this conviction. Guilt of collective entity must be proven under at least one of the three possible forms: the guilt in the selection or supervision and so called organizational guilt. The next question is how the principle of proportionality in relation to criminal measures in response of collective entities should be considered. It should be remembered that the legal subjectivity of collective entities, including their rights and freedoms, is an emanation of the rights and freedoms of individual persons which create collective entities and through these entities implement their rights and freedoms. The adopted Act largely reflects the international legal regulations but also contains the unknown and original legislative solutions.

Keywords: criminal corporate responsibility, Polish criminal law, legislative solutions, Act of 28 October 2002

Procedia PDF Downloads 479