Search results for: constitutional morality

Authors: Muhammad Fatahillah Akbar

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Criminal Procedural Law is established to protect the society from the abuse of authority. To achieve that purpose, the criminal procedural law shall be established in accordance with the laws of human right and the protection of the society. One of the mechanisms to protect human rights and to ensure the compliance of authorities in criminal procedural law is pre-trial mechanism. In many countries, there are various mechanisms of pre-trial. In the recent cases in Indonesia, pre-trial has been an interesting issue. The issue is also addressed by the Constitutional Court Decision Number 21/PUU-XII/2014 which enhance the competence of pre-trial which includes the suspect determination and the legality of seizure and search. Before that decision, some pre-trial decisions have made landmark decision by enhancing the competence of pre-trial, such as the suspect determination case in Budi Gunawan Case and legality of the investigation in Hadi Purnomo Case. These pre-trial cases occurred because the society needs protection even though it is not provided by written legislations, in this matter, The Indonesian Criminal Procedural Code (KUHAP). For instance, a person can be a suspect for unlimited time because the Criminal Procedural Code does not regulate the limit of investigation, so the suspect enactment shall be able to be challenged to protect human rights. Before the Constitutional Court Decision Suspect Determination cannot be challenged so that the society is not fully protected. The Constitutional Court Decision has provided more protections. Nowadays, investigators shall be more careful in conducting the investigation. However, those decisions, including the Constitutional Court Decision are not sufficient for society to be protected by abuse of authority. For example, on 7 March 2017, a single judge, in a Pre-Trial, at the Surabaya District Court, decided that the investigation was unlawful and shall be terminated. This is not regulated according to the Code and also any decisions in pre-trial. It can be seen that the reform of pre-trial is necessary. Hence, this paper aims to examine how pre-trial shall be developed in the future to provide wide access for society to have social justice in criminal justice system. The question will be answered by normative, historical, and comparative approaches. Firstly, the paper will examine the history of pre-trial in Indonesia and also landmark decisions on pre-trial. Then, the lessons learned from other countries regarding to the pre-trial mechanism will be elaborated to show how pre-trial shall be developed and what the competences of a pre-trial are. The focus of all discussions shall be on how the society is protected and provided access to legally complain to the authority. At the end of the paper, the recommendation to reform the pre-trial mechanism will be suggested.

Keywords: pre-trial, criminal procedural law, society

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Authors: M. Wangai

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Following the promulgation of a new Constitution of Kenya in 2010, wide-ranging proposals for reform of the criminal justice system have been made. Proposed measures include a clear and separate system of dealing with juvenile offenders with a greater focus on rehabilitation and reintegration. As part of a broader constitutional transition, this article considers the contribution of restorative justice to reforming the youth justice system. The paper analyses Kenya’s juvenile justice legal framework measured against current international trends in youth justice. It identifies the first post-independence juvenile justice system as a remnant of the colonial period and notes that the post-2001 system is a marked improvement. More recent legal and institutional efforts to incorporate restorative justice are also examined. The paper advocates further development of the juvenile justice system by mainstreaming of restorative justice principles through national level legislative amendments. International and comparative perspectives are used to inform a diversion centered model of restorative justice. In addition, a case is made for the use of existing forms of alternative dispute resolution. Conscious of a tense political climate, the paper also proposes strategies to address challenges posed by a punitive penal environment, chiefly the linking of restorative justice to wider democratic goals and community spirit. The article concludes that restorative justice led juvenile justice reform will contribute to better treatment of young offenders under the criminal justice system and has the potential to set a new precedent for fair, sustainable and effective justice. Further, as part of far-reaching criminal justice reform, the proposed efforts may strengthen democratic progress in Kenya’s ensuing phase of political transition.

Keywords: constitutional transition, criminal justice, restorative justice, young offenders

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Authors: Mamta Chandrashekhar

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Women’s participation in mainstream political and social activity has important implications for the broader arena of governance in any country. This research work will highlights some of the key issues that concerned with the impact of constitutional & Legal provision on the Indian women Status in present century. The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. In recent years, the empowerment of women has been recognized as the central issue in determining the status of women. The main objective of this research is to analyzed the status of Indian women and the existing wide gap between the goals enunciated in the Constitution, legislation, policies, plans, programmes, and related mechanisms on the one hand and the situational reality of the status of women in India, This work encourage and inspire to women empowerment, will be beneficial to build a well-organized ideal society through Gender Equality and Development & Peace in the 21st century.

Keywords: awareness, constitution, development, empowerment

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Authors: Dahiru Jafaru Usman

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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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Authors: Valentina Dotto

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

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

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Authors: Konstancja Syller

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International law and European regulations remain hardly silent about the admissibility of evidence obtained illegally in a criminal trial. However, Article 6 of the European Convention on Human Rights guarantees the right to a fair trial, it does not normalise a proceeding status of specified sources or means of proof outright. Therefore, it is the preserve of national legislation and national law enforcement authorities to decide on this matter. In most countries, especially in Germany and Poland, a rather complex normative approach to the issue of proof obtained in violation of the right to privacy is evident, which pursues in practise to many interpretive doubts. In Germany the jurisprudence has a significant impact within the range of the matter mentioned above. The Constitutional Court and the Supreme Court of Germany protect the right to privacy quite firmly - they ruled on inadmissibility of obtaining a proof in the form of a diary or a journal as a protection measure of constitutional guaranteed right. At the same time, however, the Supreme Court is not very convinced with reference to the issue of whether materials collected as a result of an inspection, call recordings or listening to the premises, which were carried out in breach of law, can be used in a criminal trial. Generally speaking, German courts indicate a crucial importance of the principle of Truth and the principle of proportionality, which both enable a judgement to be made as to the possibility of using an evidence obtained unlawfully. Comparing, in Poland there is almost no jurisprudence of the Constitutional Tribunal relating directly to the issue of illegal evidence. It is somehow surprising, considering the doctrinal analysis of the admissibility of using such proof in a criminal trial is performed in relation to standards resulted from the Constitution. Moreover, a crucial de lega lata legal provision, which enables allowing a proof obtained in infringement of the provisions in respect of criminal proceedings or through a forbidden act, is widely criticised within the legal profession ant therefore many courts give it their own interpretation at odds with legislator’s intentions. The comparison of two civil law legal systems’ standards regarding to the admissibility of an evidence obtained in contravention of the right to privacy in a criminal trial, taking also into account EU legislation and judicature, is the conclusive aim of this article.

Keywords: criminal trial, evidence, Germany, right to privacy, Poland

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Authors: Monika Florczak-Wator

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The model of positive obligations of the state concerning the protection of the rights of an individual was created within the jurisdiction of the German Federal Constitutional Court in the 1970s. That model assumes that the state should protect an individual against infringement of their fundamental rights by another individual. It is based on the idea concerning the modification of the function and duties of the state towards an individual and society. Initially the state was perceived as the main infringer of the fundamental rights of an individual formulating the individual’s obligations of negative nature (obligation of noninterference), however, at present the state is perceived as a guarantor and protector of the fundamental rights of an individual of positive nature (obligation of protection). Examination of the chosen judicial decisions of that court will enable us to determine what the obligation of protection is specifically about, when it is updated and whether it is accompanied by claims of an individual requesting the state to take actions protecting their fundamental rights against infringement by the private entities. The comparative perspective for the German model of positive obligations of the state will be an analogous model present in the jurisdiction of the European Court of Human Rights. It is justified to include it in the research as the Convention, similarly to the constitution, focuses on the protection of an individual against the infringement of their rights by the state and both models have been developed within the jurisdiction for several dozens of years. Analysis of the provisions of the Constitution of the Republic of Poland as well as judgements of the Polish Constitutional Tribunal will allow for the presentation of the application the model of the protective duties of the state in Poland.

Keywords: human rights, horizontal relationships, constitution, state protection

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Authors: Olanrewaju O. Adeojo

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The constitutional system of government provides for the federating units of the Federal Republic of Nigeria, the States and the Local Councils under a governing structure of the Executive, the Legislature and the Judiciary with attendant distinct powers and spheres of influence. The legislative powers of the Federal Republic of Nigeria and of a State are vested in the National Assembly and House of Assembly of the State respectively. The Local council exercises legislative powers in clearly defined matters as provided by the Constitution. Though, the executive as constituted by the President and the Governor are charged with the powers of execution and administration, the legislature is empowered to ensure that such powers are duly exercised in accordance with the provisions of the Constitution. The vast areas do not make oversight functions indefinite and more importantly the purpose for the exercise of the powers are circumscribed. It include, among others, any matter with respect to which it has power to make laws. Indeed, the law provides for the competence of the legislature to procure evidence, examine all persons as witnesses, to summon any person to give evidence and to issue a warrant to compel attendance in matters relevant to the subject matter of its investigation. The exercise of functions envisaged by the Constitution seem to an extent to be literal because it lacks power of enforcing the outcome. Furthermore, the docility of the legislature is apparent in a situation where the agency or authority being called in to question is part of the branch of government to enforce sanctions. The process allows for cover up and obstruction of justice. The oversight functions are not functional in a situation where the executive is overbearing. The friction, that ensues, between the Legislature and the Executive in an attempt by the former to project the spirit of a constitutional mandate calls for concern. It is needless to state a power that can easily be frustrated. To an extent, the arm of government with coercive authority seems to have over shadowy effect over the laid down functions of the legislature. Recourse to adjudication by the Judiciary had not proved to be of any serious utility especially in a clime where the wheels of justice grinds slowly, as in Nigeria, due to the nature of the legal system. Consequently, the law and the Constitution, drawing lessons from other jurisdiction, need to insulate the legislative oversight from the vagaries of the executive. A strong and virile Constitutional Court that determines, within specific time line, issues pertaining to the oversight functions of the legislative power, is apposite.

Keywords: constitution, legislative, oversight, power

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Authors: Elvin Lim

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This article integrates the debate about presidential powers with the debate about federalism, arguing that there are two ways of exercising presidential powers, one working in tandem with expanding federal powers, and the other working against it. Alexander Hamilton and Thomas Jefferson—the former a Federalist and the latter echoing the views of many Anti-Federalists—disagreed not only on the constitutional basis of prerogative, but also on the ends for which it should be deployed. This tension has always existed in American politics, and is reproduced today. Modern Democrats and Republicans both want a strong executive, but the Democrats who want a strong executive to pass legislation to expand the reach of the federal government; naturally, they must rely on an equally empowered Congress to do so. Republicans generally do not want an intrusive federal government, which is why their defense of a strong presidency does not come alongside a call for a strong Congress. This distinction cannot be explained without recourse to foundational yet opposing views about the appropriate role of federal power. When we bring federalism back in, we see that there are indeed two presidencies; one neo-Federalist, in favor of moderate presidential prerogative alongside a robust Congress directed collectively to a national state-building agenda and expanding the federal prerogative; another, neo-Anti-Federalist, in favor of expansive presidential prerogative and an ideologically sympathetic Congress equally suspicious of federal power to retard or roll back national state-building in favour of states rights.

Keywords: US presidency, federalism, prerogative, anti-federalism

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Authors: Abdulvahab Forati

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Religious intellectualism is the only stream of consciousness in Iran that its religious theories formed Democracy. The theory of Religious intellectualism was utilized in Constitutional Revolution and Islamic Revolution. To instate Democracy in Iran, in compare with West and sunnis, the theory of Religious Intellectualism is being used differently. Unlike Democracy in the west that has started with the concept of Individualism and Natural Rights or in Sunni world that has started with the concept of consultation, it has started in Iran with mima-la-nas-fih (what we don’t have any proof for)or mantaqa-alfiraq-altashri’ (area of vacuum from reason). Shia scholars first acquainted with the concept of Democracy through theories of Sheikh Mortiza Ansari, and later some of his followers, including Akhund-e-khorasani and Mirzaye naeini, regarding Sheikh Ansari’s thoughts, began to analyze its Constitutional system and Democratic elements. But Imam Khomeini, the great founder of Islamic Republic of Iran, with respect to RAKHS (religious permission for having a choice)could make connection between Islam and Democracy. Instead of focusing on Civil contracts, he relied on Sirah Ughala (Tradition) and accepted many of the current conducts, e.g. Democracy and Political Parties and acknowledged the authority (Hujiat) of them even in absence of Infallibles. These two are the most notable experiences of shia political thoughts about Democracy within the last 100 years. In this article, the author tries to explain the second experience in Imam Khomeini’s thoughts and Sirah.

Keywords: Shia school, Islamic revolution, democracy, political order

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: Chad Van Schoelandt, Chara Kokkiou

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This paper discusses Socrates’ fundamental views of morality and freedom in Plato’s Phaedo through examining the fittingness of resentment and related emotional responses. In different parts of the dialogue there seems to be two kinds of emotional justification, which seem to explain different types of appeal that Socrates makes in order to defend his own emotional responses and make recommendations to others. The upshot of this paper is to bring out the connection between different emotional responses and beliefs. In particular, it focuses on the unfittingness of the Strawsonian resentment. If one, taking a rationalistic approach, agrees that some emotions, such as resentment, have a cognitive or belief-like component, then people reacting differently to the same situation suggests differences in their judgments and beliefs. However, at times, including in Socrates’s direction to his friends in the Phaedo, emotions are justified by pragmatic appeal, independent of the beliefs associated with the emotion. In any case, there are both fittingness-based and pragmatic factors that determine and condition the warrant of an emotional response. Overall, an emotion is fitting when the agent’s beliefs indicate that the conditions of appropriatedness are met. Socrates views resentment and sorrow as unfitting due to the mismatch with his own moral beliefs and his teaching to others. At the same time, Socrates argues that his friends’ expression of sorrow at his last moments is unseemly because it is not included in the widely accepted social practices, though the emotion itself is not necessarily unfitting. Socrates’s unexpected emotional response to his death, namely his lack of resentment and sorrow, implies a different belief system and indicates his students’ lack of understanding of the actual implications of his views. Thus, the paper will bring out how complicated Socrates’s ideas were even for people who had a sustained engagement with his ideas. Overall, the paper will illuminate how these two parties (Socrates – friends) view different moral duties, namely the individual duty to philosophy, which signifies a meaningful life, and the civic duty to obey the law, which signals Socrates’ death.

Keywords: Emotions, freedom, morality, Plato

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Authors: Monika Zalewska

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Hans Kelsen was a versatile legal thinker whose achievements in the fields of legal theory, international law, and the theory of democracy are remarkable. All of the fields tackled by Kelsen are regarded as part of his “pure theory of law.” While the link between international law and Kelsen’s pure theory of law is apparent, the same cannot be said about the link between the theory of democracy and his pure theory of law. On the contrary, the general thinking concerning Kelsen’s thought is that it can be used to legitimize authoritarian regimes. The aim of this presentation is to address this concern by identifying the common ground between Kelsen’s pure theory of law and his theory of democracy and to show that they are compatible in a way that his pure theory of law and authoritarianism cannot be. The conceptual analysis of the purity of Kelsen’s theory and his goal of creating ideology-free legal science hints at how Kelsen’s pure theory of law and the theory of democracy are brought together. The presentation will first demonstrate that these two conceptions have common underlying values and meta-ethical convictions. Both are founded on relativism and a rational worldview, and the aim of both is peaceful co-existence. Second, it will be demonstrated that the separation of law and morality provides the maximum space for deliberation within democratic processes. The conclusion of this analysis is that striking similarities exist between Kelsen’s legal theory and his theory of democracy. These similarities are grounded in the Enlightenment tradition and its values, including rationality, a scientific worldview, tolerance, and equality. This observation supports the claim that, for Kelsen, legal positivism and the theory of democracy are not two separate theories but rather stem from the same set of values and from Kelsen’s relativistic worldview. Furthermore, three main issues determine Kelsen’s orientation toward a positivistic and democratic outlook. The first, which is associated with personality type, is the distinction between absolutism and relativism. The second, which is associated with the values that Kelsen favors in the social order, is peace. The third is legality, which creates the necessary condition for democracy to thrive and reveals that democracy is capable of fulfilling Kelsen’s ideal of law at its fullest. The first two categories exist in the background of Kelsen’s pure theory of law, while the latter is an inherent part of Kelsen’s concept of law. The analysis of the text concerning natural law doctrine and democracy indicates that behind the technical language of Kelsen’s pure theory of law is a strong concern with the trends that appeared after World War I. Despite his rigorous scientific mind, Kelsen was deeply humanistic. He tried to create a powerful intellectual weapon to provide strong arguments for peaceful coexistence and a rational outlook in Europe. The analysis provided by this presentation facilitates a broad theoretical, philosophical, and political understanding of Kelsen’s perspectives and, consequently, urges a strong endorsement of Kelsen’s approach to constitutional democracy.

Keywords: hans kelsen, democracy, legal positivism, pure theory of law

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Authors: Koboro J. Selala

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Whilst the system of collective bargaining is well-researched in South Africa, recent studies reveal that this is an area of law and practice that is poorly understood. Despite the growing attention being paid by most scholars to the role of collective bargaining in the labour relations system, only a handful of the studies have considered collective bargaining as a mechanism of dispute resolution. The purpose of this paper is to provide a critical analysis of the current understanding of the right to engage in collective bargaining in South Africa to assess the extent to which collective bargaining is used to resolve labour disputes. The overall objective is to offer a deeper understanding of the role of collective bargaining in dispute resolution process within the South African constitutional labour law context. To this end, the paper examines the applicable legal framework of collective bargaining to address two fundamental questions that are critical to the proper understanding of the functioning of the South African collective labour dispute resolution system. The first concerns the extent to which the current South African legislative framework supports the fundamental labour rights entrenched in the Constitution of the Republic of South Africa. The second addresses the role of trade unions in collective dispute resolution processes and the extent to which they can best utilize collective bargaining to resolve labour disputes. Finally, the paper discusses the general implications of the findings to stimulate further research and to enhance the constitutional development of collective labour rights in South Africa.

Keywords: collective bargaining, constitution, freedom of association, labour relations act

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Authors: Qi Jing

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This paper examines and defends Jürgen Habermas’s claim that law is the other side of democracy. It is believed that law and democracy are related, for Habermas, through the mediation of communicative rationality and discourse ethics. These ground a procedural conception of democracy, which legitimizes and rationalizes legal codes in a robust public sphere, linking the exercise of democratic political power to the form of law. The strengths of Habermas’s approach lie, it should be claimed, in its overcoming of relativism, its combination of democratically-enacted law with post-conventional morality, and its correction of the one-sided emphasis on private and public autonomy in Kant and Rousseau, respectively.

Keywords: habermas, law, democracy, reason, public sphere

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Authors: Leo Carlo B. Rondina

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Self-image is an important factor to improve the self-esteem of the personnel. The purpose of the study is to determine the self-image of the police. The respondents were the 503 policemen assigned in different Police Station in Davao City, and they were chosen with the used of random sampling. With the used of Exploratory Factor Analysis (EFA), latent construct variables of police image were identified as follows; professionalism, obedience, morality and justice and fairness. Further, ordinal regression indicates statistical characteristics on ages 21-40 which means the age of the respondent statistically improves self-image.

Keywords: police image, exploratory factor analysis, ordinal regression, Galatea effect

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Authors: Erni Agustin, Zendy Prameswari

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

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

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Authors: Saima Murtaza

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Ethics and aesthetics have invariably remained the two closely integrated artistic appurtenances for the production of any work of art. These artistic devices configure themselves into a complex synthesis in our contemporary literature. The labyrinthine integration of ethics and aesthetics, operating in the lives of human characters, to the extent of transcending all limits has resulted in an artistic puzzle for the readers. Art, no doubt, is an extrinsic expression of the intrinsic life of man. The use of aesthetics in literature pertaining to human existence; aesthetic solipsism, has resulted in the artistic objectification of these characters. The practice of the like aestheticism deprives the characters of their souls, rendering them as mere objects of aesthetic gaze at the hands of their artists-creators. Artists orchestrate their lives founding it on a plot which deviates from normal social and ethical standards. Their perverse attitude can be seen in dealing with characters, their feelings and the incidents of their lives. Morality is made to appear not as a religious construct but as an individual’s private affair. Furthermore, the idea of beauty incarnated, in other words hedonistic aesthetic does not placate a true aesthete. Ethics and aesthetics are the two most recurring motifs of our contemporary literature, especially of Nabokov’s world. The purpose of this study is to peruse these aforementioned motifs in Nabokov’s most enigmatic novel Lolita, a story of pedophilia, which is in fact reflective of our complex individual psychic and societal patterns. The narrative subverts all the traditional and hitherto known notions of aesthetics and ethics. When applied to literature, aesthetic does not simply mean ‘beautiful’ in the text. It refers to an intricate relationship between feelings and perception and also incorporates within its range wide-ranging emotional reactions to text. The term aesthetics in literature is connected with the readers whose critical responses to the text determine the merit of any work to be really a piece of art. Aestheticism is the child of ethics. Morality sets the grounds for the production of any work and the idea of aesthetics gives it transcendence.

Keywords: ethics, aesthetics and hedonistic aesthetic, nymphet syndrome, pedophilia

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Authors: Stacie Nelson Colling, Adele Cummings

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The United States Supreme Court recently announced that it is unconstitutional to sentence a child to life without parole for non-homicide offenses, and that each child so situated must be afforded a meaningful opportunity for release from prison in his lifetime. The Court also declared that it is unconstitutional to impose a mandatory sentence of life without parole on a child for homicide offenses. Across the United States, attorneys and advocates continue to litigate issues surrounding the implementation of these legal principles. Some states have held that any sentence to a finite term of years, no matter how long, is not the same as ‘life’ and therefore does not violate the constitution. Other states have held that a sentence to a term of years that is less than the expected life of that particular child is not unconstitutional. In Colorado, the courts have routinely looked to life expectancy estimates from governmental organizations to determine how long a particular child is expected to live. They then compare that the date that the child is expected to be eligible for parole, and if the child is expected to still be living when he is eligible for parole, the sentence is deemed constitutional. This paper argues that it is inappropriate, reckless, unconstitutional and not scientifically sound to use such estimates in determining whether a child will have a meaningful opportunity for release from prison and life outside of prison before he dies. This paper argues that the opportunity for release must mean more than a probability that a child will be released before his death, and that it must include an opportunity for a meaningful life outside of prison (not just the opportunity to be released and then die on the outside). The paper further argues that life expectancy estimates cannot guide a court or a legislature in determining whether a sentence is or is not constitutional.

Keywords: life without parole, life expectancy, juvenile sentencing, meaningful opportunity for release from prison

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Authors: Varinder Singh

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The primitive man had not known anything like human rights. In the later centuries of human progress with the development of scientific and technological knowledge, the growth of population and the tremendous changes in the human environment, the laws of nature that maintained the Eco-balance crumbled. The race for better and comfortable life landed mankind in a vicious circle. It created environmental imbalance, unplanned and uneven development, breakdown of self-sustaining village economy, mushrooming of shanty towns and slums, widening the chasm between the rich and the poor, over-exploitation of natural resources, desertification of arable lands, pollution of different kinds, heating up of earth and depletion of ozone layer. Modem International Life has been deeply marked and transformed by current endeavors to meet the needs and fulfill the requirements of protection of human person and of the environment. Such endeavors have been encouraged by the widespread recognition that protection of human being and the environment reflects common superior values and constitutes a common concern of mankind. The parallel evolutions of human rights protection and environmental protection disclose some close affinities. There was the occurrence of process of internationalization of both human rights protection and environmental protection, the former beginning with the 1948 Universal Declaration of Human Rights, the latter with the 1972 Stockholm Declaration on the Human Environment.It is now well established that it is the basic human right of every individual to live in a pollution free environment with full human dignity. The judiciary has so far pronounced a number of judgments in this regard. The Supreme Court in view of various laws relating to environment protection and the constitutional provision has held that right to pollution free environment. Article-21 is the heart of the fundamental rights and has received expanded meanings from time to time.

Keywords: human rights, law, environment, polluter

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Authors: Girma Y. Iyassu Menelik

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

Keywords: rights, international, constitutional, state, judiciary

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Authors: Luiz Nolasco Jr. Rezende, Antonio Villar M. Sá, Claudia Marcia L. Pato

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The increasing urban violence in Brazil involves more and more infractions committed by children and youths. The challenges faced by the institutional environments responsible for the education and resocialization of adolescents in conflict with the law are enormous, especially of those deprived of their liberty. These institutions have an inadequate educational structure. They are characterized by a dirty and unhealthy environment without the minimum basic conditions for their activities, by frequent practices of degradation, humiliation, and the physical and psychological punishment of inmates. This mixed-method study investigated the personal values of adolescents with restriction of freedom in a socio-educational institutional environment aiming to contribute to the development of their morality through an educational process. For that, we used a survey and transdisciplinary play workshops involving thirty-two boys aged between 15 and 19 years old and at least two years out of school. To evaluate the survey the reduced version of the Portrait Questionnaire—PQ21—was used. The workshops happened once a week, lasting 80 minutes each, totaling twelve meetings. By using the game of chess and its metaphors, participants produced texts and engaged in critical brainstorming about their lives. The survey results pointed out that these young people showed a predominance of values of openness to change and self-transcendence, dissatisfaction with one's own reality and surroundings, not considering the consequences of their actions on themselves and others, difficulties in speaking and writing, and desire for changes in their lives. After the pedagogical interventions, these adolescents demonstrated an understanding of the implications of their actions for themselves, for their families, especially for the mothers, with whom they demonstrated stronger bonds. It was possible to observe evidence of improvement in the capacity of linguistic expression, more autonomy and critical vision, including about themselves and their respective contexts. These results demonstrated the educational potential of lively, symbolic, dynamic and playful activities that favor the mediation and identification of these adolescents with their lives, and contribute to the projection of dreams.

Keywords: adolescents arrested, human values, moral development, playful workshops

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Authors: Mhd. Zakiul Fikri, M. Agus Maulidi

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Indonesia is a constitutional state. As the constitutional state, Indonesia is not only using a single legal system, but also adopting three legal systems consist of: The European continental legal system or positive law of Indonesia, adat law system, and legal system of religion. This study will discuss Marosok tradition in the process of buying and selling cattle in Payakumbuh: a comparative study between adat law and positive law of Indonesia. The objectives of this research are: First, to find the meaning of the philosophical of Marosok tradition in Payakumbuh. Second, to find the legal implications of the Marosok tradition reviewed aspects of adat law and positive law of Indonesia. Third, to find legal procedure in arbitrating the dispute wich is potentially appear in the post-process of buying and selling cattle based on positive law and adat law adopted in Indonesia. This research is empirical legal research that using two model approaches which are statute approach and conceptual approach. Data was obtained through interviews, observations, and documents or books. Then a method of data analysis used is inductive analysis. Finally, this study found that: First, tradition of Marosok contains the meaning of harmonization of social life that keep people from negative debate, envy, and arrogant. Second, Marosok tradition is one of the adat law in Indonesia; it is one of contract law in the process of buying and selling. If the comparison between the practice Marosok tradition as adat law with the provisions of Article 1320 book of civil code about the terms of the validity of a contract, the elements contained in the provisions of these regulations are met in practice Marosok. Thus, the practice of Marosok in buying and selling cattle process in Payakumbuh justified in view of the positive law of Indonesia. Last of all, all kinds of disputes arising due to contracts made by Marosok tradition can be resolved by positive law and adat law of Indonesia.

Keywords: Adat law, contract, Indonesia, Marosok

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Authors: Gergely Horvath

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The study analyzes the special provisions of the highest level of national agricultural legislation in the Fundamental Law of Hungary (25 April 2011) with descriptive, analytic and comparative methods. The agriculturally relevant articles of the constitution are very important, because –in spite of their high level of abstraction– they can determine and serve the practice comprehensively and effectively. That is why the objective of the research is to interpret the concrete sentences and phrases in connection with agriculture compared with the methods of some other relevant constitutions (historical-grammatical interpretation). The major findings of the study focus on searching for the appropriate provisions and approach capable of solving the problems of sustainable food production. The real challenge agricultural law must face with in the future is protecting or conserving its background and subjects: the environment, the ecosystem services and all the 'roots' of food production. In effect, agricultural law is the legal aspect of the production of 'our daily bread' from farm to table. However, it also must guarantee the safe daily food for our children and for all our descendants. In connection with sustainability, this unique, value-oriented constitution of an agrarian country even deals with uncustomary questions in this level of legislation like GMOs (by banning the production of genetically modified crops). The starting point is that the principle of public good (principium boni communis) must be the leading notion of the norm, which is an idea partly outside the law. The public interest is reflected by the agricultural law mainly in the concept of public health (in connection with food security) and the security of supply with healthy food. The construed Article P claims the general protection of our natural resources as a requirement. The enumeration of the specific natural resources 'which all form part of the common national heritage' also means the conservation of the grounds of sustainable agriculture. The reference of the arable land represents the subfield of law of the protection of land (and soil conservation), that of the water resources represents the subfield of water protection, the reference of forests and the biological diversity visualize the specialty of nature conservation, which is an essential support for agrobiodiversity. The mentioned protected objects constituting the nation's common heritage metonymically melt with their protective regimes, strengthening them and forming constitutional references of law. This regimes also mean the protection of the natural foundations of the life of the living and also the future generations, in the name of intra- and intergenerational equity.

Keywords: agricultural law, constitutional values, natural resources, sustainability

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Authors: Oscar Sang, Shadrack David Rotich

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Parliamentary immunity is grounded on the notion that parliaments need certain rights or immunities to ensure they can operate independently make fair and impartial decisions without capitulating to political pressure or intimidation. The 2013 election in Kenya marked an important milestone in the development of the law of parliamentary privilege. Such importance relates to the dramatic increase in the number of legislatures in the country from one unicameral parliament, to a bicameral national parliament and forty-seven other regional legislative assemblies. The increase in legislatures has resulted in a dramatic increase in political contestations which have led to legal wrangles. The judiciary in Kenya, once considered submissive, has been invited to arbitrate on various matters pitting individual rights and parliamentary privilege and have invalidated a number of legislative action. While judicial intervention is indeed necessary to ensure that legislatures in Kenya live true to the constitutional aspirations of the Kenyan people, certain judicial decisions have had an effect on eroding parliamentary immunity. This paper highlights a number of instances in which it could be argued that parliamentary privilege came under attack by the courts in Kenya. The paper aims to make a case that while Kenya’s progressive constitution necessitates the scope and extent of legislature’s immunities and privilege to be determined by the courts, it is important that courts exercise restraint in its review of legislative action. The paper makes the argument that unrestrained judicial action in Kenya on questions within the realm parliamentary privilege may undermine the functioning of Kenya’s legislatures. The paper explores approaches taken by a number of jurisdictions in establishing a proper balance between maintaining a viable parliamentary privilege regime in a rights-based constitutional system.

Keywords: Kenya, constitution, judicial restraint, parliamentary privilege

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Authors: Ali Al-Yaaribi, Maria Kavussanu

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Prosocial and antisocial behavior occurs in sport. Prosocial behavior is voluntary behavior intended to help or benefit another individual, while antisocial behavior is behavior intended to harm or disadvantage another individual. Previous sport morality research has investigated primarily antecedents of prosocial and antisocial behavior. However, the potential consequences of these behaviors remain unexplored. The aims of this study were to examine whether: (a) perceived prosocial and antisocial teammate behavior predicts task cohesion and burnout; (b) affect mediate these relationships; and (c) motivational climate moderates any of these effects. Participants were male (n = 96) and female (n = 176) teams sport players (Mage = 21.86, SD = 4.36), who completed questionnaires measuring the aforementioned variables. Mediation analysis (Hayes, 2013) indicated that prosocial teammate behavior positively predicted task cohesion and negatively predicted burnout; these effects were mediated by positive affect. Also, mastery climate moderated the positive effect of prosocial teammate behavior on task cohesion: The effect of antisocial teammate behavior on task cohesion was stronger for players who perceived a higher mastery climate created by their coaches. Performance climate moderated the negative effect of prosocial teammate behavior on burnout: This effect was only significant for players who perceived moderate or low levels of performance team climate. Antisocial teammate behavior negatively predicted task cohesion and positively predicted burnout, and these effects were mediated by negative affect. Also, performance climate moderated the positive effect of antisocial teammate behavior on burnout, such that the effect of antisocial teammate behavior on burnout was stronger for players who perceived a lower performance climate. The research findings shed some light on the potential role of prosocial and antisocial teammate behaviors as well as coach-created motivational climate on influencing players’ affect, task cohesion, and burnout. Coaches should focus on creating a mastery motivational climate and rewarding prosocial behavior while at the same time trying to deter antisocial behavior among teammates in order to enhance positive affect, task cohesion, and prevent experience of negative affect and burnout.

Keywords: mediation, moderation, morality, teams sport

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Authors: Samuel Pimpong

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In most liberal and constitutional democracies, the media serves as a dominant power in the construction of the fundamental building blocks for the consolidation of democratic governance. However, the extent to which the media can enhance democratic consolidation in a country depends to a large extent on the independence of the media, the robustness of legislative frameworks and the safety of journalists in discharging their duties without fear or favor. This study sought to examine pertinent issues, practices and challenges facing the media in Ghana’s Fourth Republic and attempts to make recommendations regarding the way forward. The work adopted a qualitative study approach. A total of sixteen (16) participants were purposively selected for face-to-face interviews. The study hinges on the democratic participant media theory and the development media theory. Primary data was analyzed via thematic analysis procedure. The study revealed that although Ghana has repealed its criminal libel laws, nonetheless other statutory Acts, such as the Electronic Communications Act 2008 (ACT 775) and the Criminal and other offences Act 1960 (Act 29), among others continue to stifle freedom of expression. On the other hand, press freedom is being abused by the use of fake content publication. Further, the study revealed that the absence of a comprehensive regulatory structure impedes the activities carried out by the media. Consequently, the study recommends a regulatory structure to oversee media activities and content, as the National Media Commission (NMC) lacks the authority to do so. In this direction, the study recommends a limitation on the role of the National Communications Authority (NCA) to administer broadcasting signals and transfer its licensing and sanctioning powers to the NMC in order to create one sole and completely independent media regulatory authority that deals with all media related issues.

Keywords: media, constitutional democracy, democratic consolidation, fourth republic

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Authors: Mrigakshi Das

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The ethics of a business is currently a high profile issue owing to sensational corporate scandals that had taken place in many countries causing extensive damages to the economy and society. These corporate scandals question the morality of businessmen in general and accountants in particular. It is argued that the accountants have been the main contributors to the decline in ethical standards of a business. This researcher has reviewed the need and impact of ethics education in accounting profession. Despite of ethical interventions, the rate of accounting scandals are increasing and have left the public questioning that has the profession become really less ethical?

Keywords: accounting, ethics education and intervention in accounting, accounting education, accounting profession, moral reasoning and development, ethics education

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Authors: Farida Ibrahim

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Right to information is the public's right to know through having access to public information held by state bodies. Recognized as a cornerstone in transparent, participatory and open democracies, the right to information is increasingly perceived today as an emerging human right on the international level. While this right is conceptualized in a range of different contexts, the paper focuses on its conceptualization as a force for socio-economic change for disadvantaged groups. The paper's goal is study the instrumental capacity of this right in empowering the public to access state-held information pertinent to their socio-economic rights. In this regard, the paper views the right to information as an inclusionary tool that is capable of spurring inclusion for individuals excluded from the ambits of both: public participation and social justice. For exploring this, the paper examines the advocacy role played by civil society groups in furthering this instrumental capacity. In particular, the paper presents a focused account on the Egyptian case. While Egypt has recently adopted its constitutional provision on access to information, doubts arise on Egyptian citizens' genuine ability to access information held by state bodies. The politico-economic environment, long term culture of bureaucratic secrecy, and legal framework do not provide promising outcomes on access to public information. Within the particular context of the Egyptian case, this paper questions the extent to which civil society in Egypt is capable of instrumentally employing the political opportunity offered by the constitutional entitlement to information access for pressuring public authorities to disclose information. Through four lawsuits brought by civil society groups in Egypt, the paper argues that the right to information has instrumentally provided civil society actors with new domains of mobilization for furthering the realization of social and economic rights, and ultimately, for renegotiating a new social order lining the relationship between the Egyptian state and its citizens marginalized by socio-economic imbalances.

Keywords: civil society, Egypt, right to information, socio-economic rights

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Authors: Tashwill Esterhuizen

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

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

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