Search results for: check and balance by the court

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: Ayyoub Jamali

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At the first glance, it seems that the African Court on Human and People’s Rights has achieved a tremendous development in the protection of human rights in Africa. Since its first judgement in 2009, the court has taken a robust approach/ assertive stance, showing its strength by finding states to be in violation of the Africana Charter and other human rights treaties. This paper seeks to discuss various challenges and resistance that the Court has faced since the adoption of the Founding Protocol to the Establishment of the African Court on Human and People’s Rights. The outcome of the paper casts shadow on the legitimacy and effectiveness of the African Court as the guarantor of human rights within the African continent.

Keywords: African Court on Human and People’s Rights, African Union, African regional human rights system, compliance

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Authors: Joseph Ignagni, Rebecca Deen

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This paper analyzes the extent to which the U.S. Supreme Court votes to support the position of the United States in cases where the government is a party to the litigation. This study considers the relationship between the Solicitor General’s Office and the U.S. Supreme Court. The Solicitor General has the unique position of being the representative of the Executive Branch and the U.S. government before the Supreme Court. While a great deal of research has looked at the Solicitor General’s success as a “friend of the court,” far less has considered this relationship when the U.S. is a direct party in the litigation. This paper investigates the success rate of the Solicitor General’s Office in these cases. We find that there is considerable variation in the U.S. government’s success rate before the Court depending on the issue, Supreme Court leadership, the ideological direction of the Court and whether the U.S. approached the Court as a petitioner or respondent. We conduct our analysis on the Court’s decisions from 1953-2009. This study adds to our understanding of checks and balances, separation of powers, and inter-institutional relationships between the branches of the federal government of the United States.

Keywords: U.S. president, solicitor general, U.S. Supreme Court, separation of power, checks and balances

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Authors: Hamid Vahidkia

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Central to the World Court’s mission is the assurance of universal custom “as prove of a common hone acknowledged as law.” Understudies of the Court’s law have long been mindful that the Court has been superior at applying standard law than characterizing it. However until Nicaragua v. Joined together States, small hurt was done. For within the strongly challenged cases earlier to Nicaragua, the Court overseen to inspire commonalities in factious structure that floated its decisions toward the standard standards certain in state hone. The Court’s need of hypothetical unequivocality basically implied that a career opportunity emerged for a few eyewitnesses like me to endeavor to supply the lost hypothesis of custom.

Keywords: law, international law, jurisdication, customary

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Authors: Thu Thuy Nguyen

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In recent years, mediation has gained a great attention from many jurisdictions thanks to its advantages. With respect to Asia, mediation has a long history of development in this region with various types to amicably settle disputes in civil and commercial issues. The modern mediation system in several Asian countries and territories comprises three main categories, namely court-annexed mediation, mediation within arbitral proceedings and institutional mediation. Court-annexed mediation (or in-court mediation) is mediation conducted by the court in the course of judicial procedures. In dealing with cross-border business disputes, in-court mediation exposes a number of advantages in comparison with two other types of mediation, especially in terms of enforcement of final result. However, the confidentiality of mediation process in subsequent judicial proceedings, qualifications of court judges and the issue of recognition and enforcement of foreign judgment are normally seen as drawbacks of court-annexed mediation as in court-annexed mediation judges will be casts as dual roles as both mediator and ultimate adjudicator in the same dispute. This paper will examine the strengths and weaknesses of in-court mediation in settling transnational business disputes in selected Asian countries, including China, Hong Kong, Japan, Singapore and Vietnam.

Keywords: court-annexed mediation, international commercial disputes, Asia, strengths and weaknesses

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Authors: Timothy Fwa Yerima

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This paper evaluates the development of human rights jurisprudence in Africa by the ECOWAS Court of Justice. It traces that though ECOWAS was not established with the aim of promoting and protecting human rights as the African Court of Human and Peoples’ Rights, no doubt, the 1991 ECOWAS Court Protocol and the 1993 ECOWAS Revised Treaty give the ECOWAS Court its human rights mandate. The paper, however, points out that despite the availability of these two Laws, the ECOWAS Court had difficulty in its human rights mandate, in view of the twin problems of lack of access to the Court by private parties and personal jurisdiction of the Court to entertain cases filed by private parties. The paper considers the 2005 Supplementary Protocol, not only as an effective legal framework in West African Sub-Region that tackles these problems in human rights cases but also a strong foundation upon which the Court has been developing human rights jurisprudence in Africa through the interpretation and application of this Law and other sources of Law of the Court. After a thorough analysis of some principles laid down by the ECOWAS Court so far, the paper observes that human rights jurisprudence in Africa is growing rapidly; depicting that though the ECOWAS Court initially had difficulty in its human rights mandate, today it has a bright and visionary landing. The paper concludes that West African Sub-Region will witness a more effective performance of the ECOWAS Court if some of its challenges are tackled.

Keywords: access, African human rights, ECOWAS court of justice, jurisprudence, personal jurisdiction

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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: Marieta Safta

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The separation and balance of state powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal conflicts of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyzes the jurisprudence of the Constitutional Court of Romania in the field of legal conflicts of a constitutional nature, revealing, together with the presentation of conflict situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions, even in terms of defining and redefining the regime of the forms of government. The conclusion of the study, beyond the subject of legal conflicts of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

Keywords: legal conflicts of constitutional nature, the Constitutional Court of Romania, the separation and balance of powers in the state, the effectiveness of constitutional justice

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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: Rafael Tedrus Bento

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The analysis of proportionality as a test is raised as a basic foundation for the achievement of Fundamental Rights. We used legal dogmatics and empirical analysis to seek the expected results, from the reading of the RV Oakes trial by the Supreme Court of Canada. In cases involving freedom of expression, two tests are used to resolve disputes. The first examines whether, in fact, the case can be characterized as a violation of freedom of expression; the second assesses whether this violation can be justified by the reasonable limit clause. This test was defined in the RV Oakes trial by the Supreme Court of Canada, concluding with the Oakes Test, used worldwide as a proportionality test. Resulting is a proportionality between the effects of the limiting measure and the objective - the more serious the harmful effects of a measure, the more important the objective must be.

Keywords: Oakes, proportionality, fundamental rights, Supreme Court of Canada

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Authors: Júlia Massadas

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The objective of this paper is to analyze the role played by the institute of the public hearings in the Brazilian Supreme Court. The public hearings are regulated since 1999 by the Brazilian Laws nº 9.868, nº 9.882 and by the Intern Regiment of the Brazilian Supreme Court. According to this legislation, the public hearings are supposed to be called when a matter of circumstance of fact must be clarified, what can be done through the hearing of the testimonies of persons with expertise and authority in the theme related to the cause. This work aims to investigate what is the role played by the public hearings and by the experts in the Brazilian Supreme Court. The hypothesis of this research is that: (I) The public hearings in the Brazilian Supreme Court are used to uphold a rhetoric of a democratic legitimacy of the Court`s decisions; (II) The Legislative intentions have been distorted. To test this hypothesis, the adopted methodology involves an empirical study of the Brazilian jurisprudence. As a conclusion, it follows that the public hearings convened by the Brazilian Supreme Court do not correspond, in practice, to the role assigned to them by the Congress since they do not serve properly to epistemic interests. The public hearings not only do not legitimate democratically the decisions, but also, do not properly clarify technical issues.

Keywords: Brazilian Supreme Court, constitutional law, public hearings, epistemic competence, legal authority

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Authors: Phutthiwat Waiyawuththanapoom

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

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

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Authors: Joseph Ignagni, Rebecca Deen

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

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

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Authors: Edoba Bright Omoregie

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Nigeria became a federation in 1954 six years before it gained independence away from British colonial rule. The country has remained a federation since then despite the challenging circumstances of military rule and civil strife which have tasked its federal credentials. Since 1961, when it first decided a federalism dispute, cases over vertical and horizontal powers have inundated the country’s Supreme Court. In its current practice of federalism after democratic rule was resumed in 1999, the country has witnessed a spell of intergovernmental disputes over a good number of federalism issues. Such conflicts have eventually found their way to the Supreme Court for resolution, not as a final appellate court (which it is in other non-federal matters) but as a court of first and final instance following the constitutional provision granting the court such power. However, in April 2014 one of such disputes was denied hearing by the court when it declined original jurisdiction to determine the matter. The suit was instituted by one state of the federation against the federal government and the other 35 states challenging the collection of value added tax (a consumption tax)on certain goods and services within the state. The paper appraises the rationale of the court’s decision and reason that its decision to decline jurisdiction is the result of an avoidable misunderstanding of the dual sovereignty instituted by the federal system of Nigeria as well as a misconception of the role which the court is constitutionally assigned to play in resolving intergovernmental schisms in the federal system.

Keywords: dual sovereignty, federalism, intergovernmental conflict, Supreme Court

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Authors: Ahmed Al-Sultan

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The check-in area of airport terminal is one of the busiest sections at airports at certain periods. The passengers are subjected to queues and delays during the check-in process. These delays and queues are due to constraints in the capacity of service facilities. In this project, the airport terminal is decomposed into several check-in areas. The airport check-in scheduling problem requires both a deterministic (integer programming) and stochastic (simulation) approach. Integer programming formulations are provided to minimize the total number of counters in each check-in area under the realistic constraint that counters for one and the same flight should be adjacent and the desired number of counters remaining in each area should be fixed during check-in operations. By using simulation, the airport system can be modeled to study the effects of various parameters such as number of passengers on a flight and check-in counter opening and closing time.

Keywords: airport terminal, integer programming, scheduling, simulation

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Authors: Tugbay Inan

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Competitive balance is known to have an important effect in determining the result of football matches. The degree of competitiveness is referred as competitive balance in football. Sports economics are the extent to which overall league attendances will be raised by measures, such as media effect, home advantage, revenue sharing, which aim to improve competitive balance. The purpose of present study was to measure the competitive balance in the football league of Turkey. In this study, by using long term competitive balance analysis, some facing problems and precautions were discussed through the seasons (1987-2014) in Turkish Football Super League (TSL). Within the practice of this study, The way that competitive balance level followed was determined in the history of super league (27 years). Based on this purpose, C5 Competitive Balance Index (C5CBI) and a Herfindahl index of competitive balance (HICB) were used. Finally, it is seen that in Super League, competitive balance factor took place time to time, however in total, a view apart from competitive balance is obviously seen.

Keywords: competitive balance, turkish football, c5 competitive balance index, Herfindahl-Hirschman Index

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Authors: M. Norazamina, A. Azizah, Y. Najihah Marha, A. Suraya

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Malaysian Public Sector departments or agencies are responsible to provide efficient public services with zero corruption. However, corruption continues to occur due to the absence of ethical leadership and well-execution of ethical guidelines. Thus, the objective of this paper is to explore the attributes of ethical leadership and ethical guidelines. This study employs a qualitative research by analyzing data from interviews with key informers of public sector using conceptual content analysis (NVivo11). The study reveals eight attributes of ethical leadership which are role model, attachment, ethical support, knowledgeable, discipline, leaders’ spirituality encouragement, virtue values and shared values. Meanwhile, five attributes (guidelines, communication, check and balance, concern on stakeholders and compliance) of ethical guidelines are identified. These identified attributes should become the ethical identity and ethical direction of Malaysian Public Sector. This could enhance the public trust as well as the international community trust towards the public sector.

Keywords: check and balance, ethical guidelines, ethical leadership, public sector, spirituality encouragement

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Authors: Shinji Kajiwara

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The spring-driven ball-type check valve is one of the most important components of hydraulic systems: it controls the position of the ball and prevents backward flow. To simplify the structure, the spring must be eliminated, and to accomplish this, the flow pattern and the behavior of the check ball in L-shaped pipe must be determined. In this paper, we present a full-scale model of a check ball made of acrylic resin, and we determine the relationship between the initial position of the ball, the position and diameter of the inflow port. The check flow rate increases in a standard center inflow model, and it is possible to greatly decrease the check-flow rate by shifting the inflow from the center.

Keywords: hydraulics, pipe flow, numerical simulation, flow visualization, check ball, L-shaped pipe

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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: Carlos Joel Tchawouo Mbiada

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This paper intends to refrain from debating the different meanings of justice, such as its social or moral meaning, nor to discuss the different theories of justice. This paper focuses on the legal understanding of access to justice to mean access to the court. Using the Labour and Labour Appeal Courts as a case study, this paper investigates whether the composition of the bench, the personnel and state mechanisms to promote access to court offer ideal conditions to access to court. The investigation is benchmarked against the South African new constitutional order underpinned by the concept of social justice to eradicate past injustices. To provide justice to all, the Constitution of the Republic of South Africa 1996 guarantees the right to access to the court. The question that takes centre stage in this paper is whether litigants are denied the right to access the Labour and Labour Appeal Courts. The paper argues that factors such as the status of the Labour and Labour Appeal Courts, the number of judges, and the building structure prevent litigants from accessing these courts. The paper advocates for a legislative overhaul of the Labour and Labour Appeal Courts structure so that litigants may access the courts. Until such time, the paper argues that the right to access the Labour and Labour Appeal Courts would remain far from the reach of many litigants.

Keywords: access to justice, access to court, labour court, labour appeal court

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Authors: Aurélie Cassiers

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In this presentation, an overview is given of the freedom of states to legislate concerning abortion. Today, access to safe and legal abortion is still a hot topic in many countries in the world. Abortion policies try to strike a balance between women’s rights to self-determination and private life on the one hand, and the protection of the life of unborn children on the other. Each country has different religious, cultural and political views on abortion, and therefore specific legislations. However, citizens may submit a complaint at international courts when they find their national legislation too restrictive. The study is discussed of the development of the ECtHR, UNCHR, and IACHR case law, regarding the question of the ‘right to abort’ and indirectly of the protection of the unborn children. Each relevant case is analyzed to answer the following questions: Is the unborn child protected, and if so, how? Why does the woman want to abort and how is her interest or right protected? How is a fair balance reached between the different interests? Is the state completely free to write policies that restrict abortion? What are the factors to determine the margin of appreciation of the state? In conclusion, does this specific court recognize a right to abort, and if so, under which conditions? To conclude, this presentation shows that each court has its own perspective on and perception of abortion, and its own criteria to determine whether the state is complying with international norms regarding individual liberty and protection of the children.

Keywords: abortion, international courts, unborn children, women rights

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Authors: K. Abuzayan, H. Alabed, J. Ezarrugh, M. Agila

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Static and dynamic balance are essential in daily and sports life. Many factors have been identified as influencing static balance control. Therefore, the aim of this study was to apply the (XCoM) method and other relevant variables (CoP, CoM, Fh, KE, P, Q, and, AI) to investigate sport related activities such as hopping and jumping. Many studies have represented the CoP data without mentioning its accuracy, so several experiments were done to establish the agreement between the CoP and the projected CoM in a static condition. Five male healthy (Mean ± SD:- age 24.6 years ±4.5, height 177 cm ± 6.3, body mass 72.8 kg ± 6.6) participated in this study. Results found that The implementation of the XCoM method was found to be practical for evaluating both static and dynamic balance. The general findings were that the CoP, the CoM, the XCoM, Fh, and Q were more informative than the other variables (e.g. KE, P, and AI) during static and dynamic balance. The XCoM method was found to be applicable to dynamic balance as well as static balance.

Keywords: centre of mass, static balance, dynamic balance, extrapolated centre of mass

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Authors: J. Jayaletchmi

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In seeking to manage a multiracial and multi-religious society, Singapore provides a unique solution – a dual court system whereby a common law system co-exists with a Syariah law system that administers Syariah law for the Muslim population. In this respect, Singapore seems to provide a feasible example of legal pluralism to countries grappling with a burgeoning Muslim population. However, problems have arisen regarding this peaceful coexistence of secular and religious laws that seek to balance the rights of women and religious freedom. Singapore’s interpretation of Syariah law in the context of marriage and divorce has resulted in certain inequalities for Muslim women, which are exemplified in light of the Women’s Charter, a landmark piece of legislation which provides the legal basis for equity between husband and wife, but excludes Muslims from its ambit. The success of Singapore’s dual court system has largely been at the expense of Muslim women’s rights, and, as a result, the Muslim community as a whole has begun trailing behind the progressive society it forms a part of. This paper explores the prevailing unfairness of rules governing Muslim marriage and divorce in Singapore, and puts forth bold reforms.

Keywords: legal pluralism, Singapore, Syariah law, women’s rights

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Authors: Mariam Begadze

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Separation of Powers (SOP) has often been the most frequently posed objection against the judicial enforcement of socio-economic rights. Although a lot has been written to refute those, very rarely has it been assessed what effect the current practice of social rights adjudication has had on the construction of SOP doctrine in specific jurisdictions. Colombia is an appropriate case-study on this question. The notion of collaborative SOP in the 1991 Constitution has affected the court’s conception of its role. On the other hand, the trends in the jurisprudence have further shaped the collaborative notion of SOP. Other institutional characteristics of the Colombian constitutional law have played its share role as well. Tutela action, particularly flexible and fast judicial action for individuals has placed the judiciary in a more confrontational relation vis-à-vis the political branches. Later interventions through abstract review of austerity measures further contributed to that development. Logically, the court’s activism in this sphere has attracted attacks from political branches, which have turned out to be unsuccessful precisely due to court’s outreach to the middle-class, whose direct reliance on the court has turned into its direct democratic legitimacy. Only later have the structural judgments attempted to revive the collaborative notion behind SOP doctrine. However, the court-supervised monitoring process of implementation has itself manifested fluctuations in the mode of collaboration, moving into more managerial supervision recently. This is not surprising considering the highly dysfunctional political system in Colombia, where distrust seems to be the default starting point in the interaction of the branches. The paper aims to answer the question, what the appropriate judicial tools are to realize the collaborative notion of SOP in a context where the court has to strike a balance between the strong executive and the weak and largely dysfunctional legislative branch. If the recurrent abuse lies in the indifference and inaction of legislative branches to engage with political issues seriously, what are the tools in the court’s hands to activate the political process? The answer to this question partly lies in the court’s other strand of jurisprudence, in which it combines substantive objections with procedural ones concerning the operation of the legislative branch. The primary example is the decision on value-added tax on basic goods, in which the court invalidated the law based on the absence of sufficient deliberation in Congress on the question of the bills’ implications on the equity and progressiveness of the entire taxing system. The decision led to Congressional rejection of an identical bill based on the arguments put forward by the court. The case perhaps is the best illustration of the collaborative notion of SOP, in which the court refrains from categorical pronouncements, while does its bit for activating political process. This also legitimizes the court’s activism based on its role to counter the most perilous abuse in the Colombian context – failure of the political system to seriously engage with serious political questions.

Keywords: Colombian constitutional court, judicial review, separation of powers, social rights

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Authors: Masnur Marzuki

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

Keywords: constitution, court, law, rights

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Authors: Stephen Fanale

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

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

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Authors: Roger-Claude Liwanga

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

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

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Authors: Hsiu-Hua Cheng

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Recently, the competition between websites becomes intense. How to make users “adopt” their websites is an issue of urgent importance for online communities companies. Social procedures (such as social influence) can possibly explain how and why users’ technologies usage behaviors affect other people to use the technologies. This study proposes two types of social influences on the initial usage of Facebook Check In-friends and group members. Besides, this study indicates that Facebook friends’ previous usage of Facebook Check In and Facebook group members’ previous usage of Facebook Check In will positively influence focal actors’ Facebook Check In adoption intention. The article concludes with contributions to academic research and practice.

Keywords: social influence, adoption intention, facebook check in, previous usage behavior

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Authors: Miguel Manero De Lemos

Abstract:

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

Keywords: terrorism, STL, crime, international criminal law

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Authors: Dahiru Jafaru Usman

Abstract:

Nigerian courts have been sanctioned by a plethora of authorities to always employ the literal rule in interpreting statutes where the language of the statute is clear and unambiguous. This cardinal rule of interpretation appears not to be employed on Shari'ah issues in Nigeria. This is more pronounced in the interpretation of the jurisdiction of the Shari'ah Court of Appeal (hereinafter the court). The paper doctrinally assesses the judicial attitude of Nigerian appellate courts towards the construction of Section 277 of the 1999 Constitution as amended and other relevant statutory enactments by the State Houses of Assembly. The paper argues that a careful examination of the wordings of the constitution on the jurisdiction of the court literally reveals the intention of the constitutional drafters empowering the National Assembly and States' House of Assemblies to add to the itemised jurisdictional areas of the court other matters not mentioned. The paper found that the appellate courts failed in their construction of the constitutional provisions to accord the words and phrases used in the establishment, jurisdiction, and quorum sections of the court their ordinary and grammatical meaning. This results in consistent limitation of the jurisdiction of the court to matters of Islamic personal law. This remains so even when Decree No. 26 of 1986 was in force suspending and amending the provisions of the 1979 Constitution deleting the word 'personal' in the suspended Nigerian Constitutions. In order not to render section 277 futile, the paper recommends that appellate courts in Nigeria should as required by rules of statutory interpretation adopt literal and ordinary grammatical meaning in interpreting constitutional provisions on the jurisdiction of the court. It is further recommended that appellate courts must interpret the provisions of the 1999 constitution in a manner not to frustrate the several decades' yearnings of the Muslims for a court that would hear all their appellate criminal and civil matters on the path of Shari'ah from the lowest court to the highest. This is a duty the Nigerian Supreme Court placed on their shoulders.

Keywords: interpretation of statutes, jurisdiction, literal rule, Nigeria, Shari'ah Court of Appeal, 1999 Constitution

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