Search results for: judicial

Authors: Jean-François Caron

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The current attempts to develop what we can call 'super soldiers' are problematic in many regards. This is what this text will try to explore by concentrating primarily on the repercussions of this technology and medical research on the physical and psychological integrity of soldiers. It argues that medicines or technologies may affect soldiers’ psychological and mental features and deprive them of their capacity to reflect upon their actions as autonomous subjects and that such a possibility entails serious moral as well as judicial consequences.

Keywords: military research, super soldiers, involuntary intoxication, criminal responsibility

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Authors: Felix O. Omosele

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Several studies have established that electronic voting machines are prone to multi-faceted challenges. One of which is their capacity to lose votes after the ballots might have been cast. Therefore, the international consensus appears to favour the use of electronic voting machines that are accompanied with verifiable audit paper audit trail (VVPAT). At present, there is no known study that has evaluated the impacts (or otherwise) of this verification and auditing on the authentication, admissibility and evidential weight of electronically-obtained electoral data. This legal inquiry is important as elections are sometimes won or lost in courts and on the basis of such data. This gap will be filled by the present research work. Using the United States of America as a case study, this paper employed a qualitative legal analysis of several of its appellate courts’ judicial opinions. This analysis equally unearths the necessary statutory rules and regulations that are important to the research problem. The objective of the research is to highlight the roles played by VVPAT on electoral evidence- as seen from the eyes of the court. The preliminary outcome of this qualitative analysis shows that the admissibility and weight attached to ‘Computer Evidence from e-voting machines (CEEM)’ are often treated with general standards applied to other computer-stored evidence. These standards sometimes fail to embrace the peculiar challenges faced by CEEM, particularly with respect to their tabulation and transmission. This paper, therefore, argues that CEEM should be accorded unique consideration by courts. It proposes the development of a legal standard which recognises verification and auditing as ‘weight enhancers’ for electronically-obtained electoral data.

Keywords: admissibility of computer evidence, electronic voting, qualitative legal analysis, voting machines in the USA

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Authors: Muthukuda Arachchige Dona Shiroma Jeeva Shirajanie Niriella

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The necessity of protection of the rights of victims of crime is a matter of concerns today. In the criminal justice system, child victims who are subjected to sexual abuse/violence are more vulnerable than the other crime victims. When they go to the police to lodge the complaint and until the end of the court proceedings, these victims are re-victimized in the criminal justice system. The rights of the suspects, accused and convicts are recognized and guaranteed by the constitution under fair trial norm, contemporary penal laws where crime is viewed as an offence against the State and existing criminal justice system in many jurisdictions including Sri Lanka. In this backdrop, a reasonable question arises as to whether the existing criminal justice system, especially which follow the adversarial mode of judicial trial protect the fair trial norm in the criminal justice process. Therefore, this paper intends to discuss the rights of the sexually abused child victims in the criminal justice system in order to restore imbalance between the rights of the wrongdoer and victim and suggest legal reforms to strengthen their rights in the criminal justice system which is essential to end secondary victimization. The paper considers Sri Lanka as a sample to discuss this issue. The paper looks at how the child victims are marginalized in the traditional adversarial model of the justice process, whether the contemporary penal laws adequately protect the right of these victims and whether the current laws set out the provisions to provide sufficient assistance and protection to them. The study further deals with the important principles adopted in international human rights law relating to the protection of the rights of the child victims in sexual offences cases. In this research paper, rights of the child victims in the investigation, trial and post-trial stages in the criminal justice process will be assessed. This research contains an extensive scrutiny of relevant international standards and local statutory provisions. Case law, books, journal articles, government publications such as commissions’ reports under this topic are rigorously reviewed as secondary resources. Further, randomly selected 25 child victims of sexual offences from the decided cases in last two years, police officers from 5 police divisions where the highest numbers of sexual offences were reported in last two years and the judicial officers both Magistrates and High Court Judges from the same judicial zones are interviewed. These data will be analyzed in order to find out the reasons for this specific sexual victimization, needs of these victims in various stages of the criminal justice system, relationship between victimization and offending and the difficulties and problems that these victims come across in criminal justice system. The author argues that the child victims are considerably neglected and their rights are not adequately protected in the adversarial model of the criminal justice process.

Keywords: child victims of sexual violence, criminal justice system, international standards, rights of child victims, Sri Lanka

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Authors: Sonia Anand Knowlton

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With the rise of artificial intelligence, computer science is becoming increasingly integrated in virtually every area of life. Of course, the law is no exception. Through argumentation frameworks (AFs), computer scientists have used abstract algebra to structure the legal reasoning process in a way that allows conclusions to be drawn from a formalized system of arguments. In AFs, arguments compete against each other for logical success and are related to one another through the binary operation of the attack. The prevailing arguments make up the preferred extension of the given argumentation framework, telling us what set of arguments must be accepted from a logical standpoint. There have been several developments of AFs since its original conception in the early 90’s in efforts to make them more aligned with the human reasoning process. Generally, these developments have sought to add nuance to the factors that influence the logical success of competing arguments (e.g., giving an argument more logical strength based on the underlying value it promotes). The most cogent development was that of the Extended Argumentation Framework (EAF), in which attacks can themselves be attacked by other arguments, and the promotion of different competing values can be formalized within the system. This article applies the logical structure of EAFs to current theoretical understandings of judicial reasoning to contribute to theories of judging and to the evolution of AFs simultaneously. The argument is that the main limitation of EAFs, when applied to judicial reasoning, is that they require judges to themselves assign values to different arguments and then lexically order these values to determine the given framework’s preferred extension. Drawing on John Rawls’ Theory of Justice, the examination that follows is whether values are lexical and commensurable to this extent. The analysis that follows then suggests a potential extension of the EAF system with an approach that formalizes different “planes of attack” for competing arguments that promote lexically ordered values. This article concludes with a summary of how these insights contribute to theories of judging and of legal reasoning more broadly, specifically in indeterminate cases where judges must turn to value-based approaches.

Keywords: computer science, mathematics, law, legal theory, judging

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Authors: Sunayana Basu Mallik, Shishira Prakash

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The inclusion of Rights of Author (Moral and Personal Rights) resonate the century long battle of rights of authors, composers, performers across developed and developing countries (whether following civil law or common law systems). But, the juxtaposition of author’s special, moral, personal rights within the legislative framework of Copyright statutes (Indian Copyright Act, 1957, applicable statutes) underscores the foundational role of the right which goes to the root of the constitutional structure of India and philosophies of political and literary leaders like Mahatma Gandhi and Gurudeb Rabindranath Tagore. In the pre-independence era when the concept of moral rights was unknown to both England and India’s statutory laws, the strategic deployment method of Gandhi, his ideologies and thoughts scripted the concept of moral rights for authors/composers. The preservation of Rabindric Style (Characteristic Tagore’s vocal renditions) by Vishwabharati University (successor in interest for Tagore’s literary and musical compositions) prior to the Copyright Amendment of 1999 recognizing Author’s Special Rights in line with 6bis of Berne Convention invigorates the fact that the right existed intrinsically prior to the legislative amendment. The paper would in addition to the academic probe carry out an empirical enquiry of the institution’s (Navjivan Trust and Vishwa Bharati University’s) reasoning on the same. The judicial discourse and transforming constitutional ideals between 1950s till date in India alludes Moral Rights to be an essential legal right which have been reasoned by Indian Courts based on the underlying philosophies in culture, customs, religion wherein composers and literary figures have played key roles in enlightening and encouraging the members of society through their literary, musical and artistic work during pre-independence renaissance of India. The discourses have been influenced by the philosophies reflected in the preamble of the Indian constitution, ‘socialist, secular, democratic republic’ and laws of other civil law countries. Lastly, the paper would analyze the adjudication process and witness involvement in ascertaining violations of moral rights and further summarize the indigenous and country specific economic thoughts that often chisel decisions on moral rights of authors, composers, performers which sometimes intersect with author’s right of privacy and against defamation. The exclusivity contracts or other arrangements between authors, composers and publishing companies not only have an erosive effect on each thread of moral rights but irreparably dents factors that promote creativity. The paper would also be review these arrangements in view of the principles of unjust enrichment, unfair trade practices, anti-competitive behavior and breach of Section 27 (Restrain of Trade) of Indian Contract Act, 1857. The paper will thus lay down the three pillars on which author’s rights in India should namely rest, (a) political and judicial discourse evolving principles supporting moral rights of authors; (b) amendment and insertion of Section 57 of the Copyright Act, 1957; (c) overall constitutional framework supporting author’s rights.

Keywords: copyright, moral rights, performer’s rights, personal rights

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Authors: István János Molnár

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Hungary has a legal system that is primarily based on statutory legislation, which means that statutes are the main source of law. However, in a surprising move, the Hungarian Parliament introduced a "limited" precedent system on 1 April 2020. This reform requires Hungarian courts to consider not only statutes but also the interpretation of those statutes in decisions made by the highest court in the country, the Curia. While judge-made customary law is not completely unfamiliar in Hungarian legal practice, the introduction of this new system presents several theoretical and practical challenges that may take time to resolve.

Keywords: civil procedure, hungary, judicial practice, precedent system, sources of law

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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: Elisabetta Baldassini

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Responses to atrocities are always unique and context-dependent. They cannot be foretold nor easily prompted. However, the events of the twentieth century had set the scene for the international community to explore new and more robust systems in response to war atrocities, with the ultimate goal being the restoration and maintenance of peace and security. The outlawry of war and the attribution of individual liability for international crimes were two major landmarks that set the roots for the development of international criminal law. From the London Conference (1945) for the establishment of the first international military tribunal in Nuremberg to Rome at the inauguration of the first permanent international criminal court, the development of international criminal law has shaped in itself a fluctuating degree of tensions between justice and maintenance of international peace and security, the cardinal dichotomy of this article. The adoption of judicial measures to achieve peace indeed set justice as an essential feature at the heart of the new international system. Blackhole of this dichotomy is the crime of aggression. Aggression was at first the key component of a wide body of peace projects prosecuted under the charges of crimes against peace. However, the wide array of controversies around aggression mostly related to its definition, determination and the involvement of the Security Council silenced, partly, a degree of efforts and agreements. Notwithstanding the establishment of the International Criminal Court (ICC), jurisdiction over the crime of aggression was suspended until an agreement over the definition and the conditions for the Court’s exercise of jurisdiction was reached. Compromised over the crime was achieved in Kampala in 2010 and the Court’s jurisdiction over the crime of aggression was eventually activated on 17 July 2018. China has steadily supported the advancement of international criminal justice together with the establishment of a permanent international judicial body to prosecute grave crimes and has proactively participated at the various stages of the codification and development of the crime of aggression. However, China has also expressed systematic reservations and setbacks. With the use of primary and secondary sources, including semi-structured interviews, this research aims at analyzing the role that China has played throughout the substantive historical development of the crime of aggression, demonstrating a sharp inclination in the maintenance of international peace and security. Such state behavior seems to reflect national and international political mechanisms that gravitate around a distinct rationale that involves a share of culture and tradition.

Keywords: maintenance of peace and security, cultural expression of justice, crime of aggression, China

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Authors: Dorota Galeza

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This paper argues that networks, such as the ECN and the American network, are affected by certain small events which are inherent to path dependence and preclude the full evolution towards efficiency. It is advocated that the American network is superior to the ECN in many respects due to its greater flexibility and longer history. This stems in particular from the creation of the American network, which was based on a small number of cases. Such a structure encourages further changes and modifications which are not necessarily radical. The ECN, by contrast, was established by legislative action, which explains its rigid structure and resistance to change. This paper is an attempt to transpose the superiority of the American network on to the ECN. It looks at concepts such as judicial cooperation, harmonisation of procedure, peer review and regulatory impact assessments (RIAs), and dispute resolution procedures.

Keywords: antitrust, competition, networks, path dependence

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Authors: Julia Burchett

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After France became the target of an increasing number of terrorist attacks committed by people who have been declared ‘radicalized’, the issue of radicalization has become the main component of the national Action Plan for the Prevention of terrorism, thus stressing the need to address the roots causes of this peril. Therefore, the aim of this research paper is to provide a preliminary review of Frances’s strategy in the fight against terrorist radicalization in order to point out the challenges posed by this phenomenon while also highlighting its contemporary version and the understanding the results. In this regard, it should not be forgotten that the process of radicalization does not always lead to a terrorist act. To this end, the French legal framework that applies to radicalization coupled with the judicial response provided by the National Court will be analyzed in the light of the need for a balance between the concern for security and the protection of fundamental freedoms.

Keywords: criminal law, France, fundamental freedoms, radicalization, terrorism

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Authors: Iyad Jadalhaq, Mohammed El Hadi El Maknouzi

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The place of Islamic law in the legal system of the UAE is best understood by introducing a differentiation between its role as a formal source of law and its influence as a material source of law. What this differentiation helps clarify is that the corpus of Islamic law constitutes a much deeper influence on adjudication, law-making and the legal profession in the UAE, than it might appear at first sight, by considering its formal position in the division of labor between courts, or legislative lists of sources of law. This paper aims to examine the role of Shariah in the UAE private law system by determining the comprehensiveness of Sharia in the legal system as a whole, and not in a limited way related to it as a source of law according to Article 1 of the Civil Transactions Law. Turning to the role of the Shariah as a formal source of law, it is useful to start from Article 1 of the UAE Civil Code. This provision lays out the formal hierarchy of sources of UAE private law, these being legislation, Islamic law, and custom. Hence, when deciding a civil dispute, a judge should first refer to positive legislation in force in the UAE. Lacking the rule to cover the case before him/her, the judge ought then to refer directly to Islamic law. If the matter lacks regulation in Islamic law, only then may the judge appeal to custom. Accordingly, in connection to civil transactions, Shariah is presented here, formally, as the second source of law. Still, Shariah law addresses many other issues beyond civil transactions, including matters of morals, worship, and belief. However, in Article 1 of the UAE Civil Code, the reference to Islamic law ought to be understood as limited to the rules it lays out for civil transactions. There are four main sets of courts in the judicial systems of the UAE, whose competence is based on whether a dispute touches upon civil and commercial transactions, criminal offenses, personal statuses, or labor relations. This sectorial and multi-tiered organization of courts as a whole constitutes an institutional development compatible with the long-standing affirmation in the Shariah of the legitimacy of the judiciary. Indeed, Islamic law authorizes the governing authorities to organize the judiciary, including by allocating specific types of cases to particular kinds of judges depending on the value of the case, or by assigning judges to a specific place in which they are to exercise their jurisdictional function. In view of this, the contemporary organization of courts in the UAE can be regarded as an organic adaptation, aligned with Shariah rules on the assignment of jurisdictional authority, to the growing complexity of modern society. Therefore, we can conclude to the comprehensive role of Shariah in the entire legal system of the United Arab Emirates, including legislation, a judicial system, institutional, and administrative work.

Keywords: Islamic jurisprudence, Shariah, UAE civil code, UAE private law

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Authors: Mustafa Arikan, Ibrahim Ercan

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In this paper, protection of program formats was investigated in terms of program formats. Protection of program formats was studied in the French Law in the sense of competition law and CPI. Since the English Judicial system exhibits differences from the legal system of Continental Europe, its investigation bears a special significance. The subject was also handled in German Law at length. Indeed, German Law was investigated in detail within the overall framework of the study. Here, the court decisions in the German Law and the views in the doctrine were expressed in general. There are many court decisions in the American legal system concerning the subject. These decisions also present alternatives in terms of a solution to the problem.

Keywords: comparative law, protection of television programme formats, intellectual property, american legal system

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Authors: Kayode Julius Oni

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Without mincing words, democracy is by far the most popular form of government in the world today. No matter how we look at it, and regardless of the variant, most leaders in the world today wish to be seen or labeled as Democrats. Perhaps, its attractions in terms of freedom of allocation, accountability, smooth successions of leadership and a lot more, account for its appeal to the ordinary people. The governance style in Nigeria since 1999 cannot be said to be different from the military. Elections are manipulated, judicial processes abused, and the ordinary people do not have access to the dividends of democracy. The paper seeks to address the existing failures experienced under democratic rule in Nigeria which have to transcend into violation of human rights in the conduct of government business. The paper employs the primary and secondary sources of data collection, and it is highly descriptive and critical.

Keywords: democracy, human rights, Nigeria, politics, republic

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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: Bouchaib Gazzaz, Mounir Mehdi

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In order to ensure consumer food protection, the food industry has a legal obligation to provide food products that comply with the requirements of the legislation in force. National regulations in this area occupy an important place in the food control system in terms of consumer protection. This article discusses the legal and regulatory framework of food safety and consumer protection in Moroccan law. We used the doctrinal research approach by analyzing the judicial normative and bibliographic legal research. As a result, we were able to present the basic principles of consumer food protection by showing to what extent the food safety law provides effective consumer protection in Morocco. We have concluded that there is an impact -in terms of consumer legal protection- of food law reform on the concept of food safety.

Keywords: food safety, Morocco, consumer protection, framework, food law

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Authors: Mohammad Rahmani Rezaiyeh, Mojtaba Rahmani Rezaiyeh, Mehrdad Rahmani Rezaiyeh

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Smart speed bump is a new invention and I am invented it. Smart speed bump is a system that can change the position of speed bumps either active or passive in necessary situations. The basic system of smart speed bumps is based on a robotic system which includes mechanic, electronic and artificial intelligence. The smart speed bump is capable of smart decision making and can change its position by anticipating the peak of terrific hours. It can be noted to the advantages of this system such as preventing the waste of petrol while crossing speed bumps, traffic management, accelerating, flowing and securing traffic, reducing accidents and judicial records.

Keywords: invention, smart, robotic system, speed bump, traffic, management

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Authors: Hasan Alrashid

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The 2005 Hague Convention seeks to ensure legal certainty and predictability between parties in international business transactions. It harmonies exclusive choice of court agreements at the international level between parties to commercial transactions and to govern the recognition and enforcement of judgments resulting from proceedings based on such agreements to promote international trade and investment. Although the choice of court agreements is significant in international business transactions, the United Arab Emirates refuse to recognise it by Article 24 of the Federal Law No. 11 of 1992 of the Civil Procedure Code. A review of judicial judgments in United Arab Emirates up to the present day has revealed that several cases appeared before the Court in different states of United Arab Emirates regarding the recognition of exclusive choice of court agreements. In all the cases, the courts regarded the exclusive choice of court agreements as a direct assault on state authority and sovereignty and refused categorically to recognize choice of court agreements by refusing to stay proceedings in favor of the foreign chosen court. This has created uncertainty and unpredictability in international business transaction in the United Arab Emirates. In June 2011, the first Gulf Judicial Seminar on Cross-Frontier Legal Cooperation in Civil and Commercial Matters was held in Doha, Qatar. The Permanent Bureau of the Hague Conference attended the conference and invited the states of the Gulf Cooperation Council (GCC) namely, The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait to adopt some of the Hague Conventions, one of which was the Hague Convention on Choice of Court Agreements. One of the recommendations of the conference was that the GCC states should research ‘the benefits of predictability and legal certainty provided by the 2005 Convention on Choice of Court Agreements and its resulting advantages for cross-border trade and investment’ for possible adoption of the Hague Convention. Up to today, no further step has been taken by the any of the GCC states to adapt the Hague Convention nor did they conduct research on the benefits of predictability and legal certainty in international business transactions. This paper will argue that the approach regarding the recognition of choice of court agreements in United Arab Emirates states can be improved in order to help the parties in international business transactions avoid parallel litigation and ensure legal certainty and predictability. The focus will be the uncertainty and gaps regarding the choice of court agreements in the United Arab Emirates states. The Hague Convention on choice of court agreements and the importance of harmonisation of the rules of choice of court agreements at international level will also be discussed. Finally, The feasibility and desirability of recognizing choice of court agreements in United Arab Emirates legal system by becoming a party to the Hague Convention will be evaluated.

Keywords: choice of court agreements, party autonomy, public authority, sovereignty

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Authors: Brian Carey Sims

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The current study examines psychological factors relevant to child custody litigation among African American fathers. Thirty-seven fathers engaged in various stages of custody litigation involving their children were surveyed about their perceptions of racial stereotypes, parental motivations, and racialized dynamics of the court/ legal process. Data were analyzed using a Critical Race Theory model designed to statistically isolate fathers’ perceptions of the existence and maintenance of structural racism through the legal process. Results indicate significant correlations between fathers’ psychological measures and structural outcomes of their cases. Findings are discussed in terms of ethical implications for family court judicial systems and attorney practice.

Keywords: ethics, family, legal psychology, policy, race

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Authors: S. Sunaina, Neha Saini

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Children are considered as future of a country. In order to have a better future, better laws are required in the present, especially for the children. Their development primarily revolves around physical, mental, psychological, emotional and financial facets. Hence the holistic development of a child in the contemporary society is a must in order to secure a better future. The present paper is an endeavour to analyse the development of children in India vis-a-vis The Child Development Bill 2016 and Child Labour (Abolition) Bill 2016 pending before the Indian Parliament. The findings of the study will attempt to highlight the flaws of the Bills and their probable repercussions, supporting the same with Constitutional provisions, judicial precedents, and the international perspective. Finally, the paper will conclude with concrete suggestions to overcome the flaws of the Bills so that the Bills, when passed, can be sincerely implemented.

Keywords: bill, children, development, repercussion

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Authors: Daniel Suarez Alonso

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Cybercrime is a growing international threat and a challenge for law enforcement agencies and judicial systems worldwide. International cooperation is necessary to solve this problem because cybercrime knows no borders and often involves multiple jurisdictions, being related to organised crime. The purpose of this article is to analyse international cooperation in the investigation and prosecution of cybercrime, focusing on the framework of the Regulation of the European Union Agency for Law Enforcement Cooperation (EUROPOL), cooperation that takes place between police authorities from different countries. It examines the legal and operational mechanisms in place to facilitate international cooperation in Europe in this area and assesses their effectiveness in the fight against cybercrime. In addition, the study of a Spanish investigation where cooperation with EUROPOL took place will be examined, analyzing how international cooperation was carried out to investigate and track down criminals. Lessons learned from this case will be discussed and recommendations for improving international cooperation in the fight against cybercrime will be proposed.

Keywords: Europol, international cooperation, cybercrime, computer crime, law

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Authors: Huang Gui

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This paper supplies some possible approaches of the death penalty reform in China basic on the analyzing the reformation conducted by the Ninth Amendment. There now are 46 crimes punishable by death, and this penalty still plays a significant role in the criminal punishment structure. In order to abolish entirely the death penalty in Penal Code, the legislature of China should gradually abolish the death penalty for the nonviolent crimes and then for the nonlethal violent crimes and finally for the lethal violent crimes. In the case where the death penalty has not yet been abolished completely, increasing the applicable conditions of suspension of execution of death penalty and reducing the scope of applicable objects (elderly defendant and other kinds of special objects) of death penalty would be an effective road to control and limit the use of death penalty in judicial practice.

Keywords: death penalty, the eighth amendment, the ninth amendment, suspension of execution of death, immediate execution of death, China

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

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

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

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Authors: Anurag Devkota

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Foreign employment serves to be the strongest pillar in engendering employment options for a large number of the young Nepali population. Nepali workers are forced to leave the comfort of their homes and are exposed to precarious conditions while on a journey to earn enough money to live better their lives. The exponential rise in foreign labour migration has produced a snowball effect on the economy of the nation. The dramatic variation in the economic development of the state has proved to establish the fact that migration is increasingly significant for livelihood, economic development, political stability, academic discourse and policy planning in Nepal. The foreign employment practice in Nepal largely incorporates the role of individual agents in the entire process of migration. With the fraudulent acts and false promises of these agents, the problems associated with every Nepali migrant worker starts at home. The workers encounter tremendous pre-departure malpractice and exploitation at home by different individual agents during different stages of processing. Although these epidemic and repetitive ill activities of intermediaries are dominant and deeply rooted, the agents have been allowed to walk free in the absence of proper laws to curb their wrongdoings and misconduct. It has been found that the existing regulatory mechanisms have not been utilised to their full efficacy and often fall short in addressing the actual concerns of the workers because of the complex legal and judicial procedures. Structural changes in the judicial setting will help bring perpetrators under the law and victims towards access to justice. Thus, a qualitative improvement of the overall situation of Nepali migrant workers calls for a proper 'regulatory' arrangement vis-à-vis these brokers. Hence, the author aims to carry out a doctrinal study using reports and scholarly articles as a major source of data collection. Various reports published by different non-governmental and governmental organizations working in the field of labour migration will be examined and the research will focus on the inductive and deductive data analysis. Hence, the real challenge of establishing a pro-migrant worker regime in recent times is to bring the agents under the jurisdiction of the court in Nepal. The Gulf Visit Study Report, 2017 prepared and launched by the International Relation and Labour Committee of Legislature-Parliament of Nepal finds that solving the problems at home solves 80 percent of the problems concerning migrant workers in Nepal. Against this backdrop, this research study is intended to determine the ways and measures to curb the role of agents in the foreign employment and labour migration process of Nepal. It will further dig deeper into the regulatory mechanisms of Nepal and map out essential determinant behind the impunity of agents.

Keywords: foreign employment, labour migration, human rights, migrant workers

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Authors: Mingsiang Chen

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The increasing transactions among countries worldwide have brought about a trend of comparative law research in the legal community. An important branch of legal research, i.e., constitutional law, is no exception to the trend. The comparative study of constitutional law takes various forms, and one of these is to study the use of foreign law by constitutional courts. There are, in essence, three sources of foreign law usually used by constitutional courts: foreign constitutions, decisions by foreign constitutional courts, and legal theories developed by foreign scholars. There are two types of using foreign law by constitutional courts: citing any of the forenamed sources for reference purpose, ruling based on the contents or logic of any of the forenamed sources. This paper examines all the decisions handed down by the Constitutional Court of Taiwan from 1990 to 2017. Its purpose is to seek out the occasions, the extent, the significance, and the approach of such usage.

Keywords: comparative constitutional law, constitutional court, judicial review, Taiwan judiciary

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Authors: Mehrnoosh Abouzari

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Artificial intelligence has covered all areas of human life and has helped or replaced many jobs. One of the areas of application of artificial intelligence in the police is to detect crime, identify the accused or victim and prove the crime. It will play an effective role in implementing preventive justice and creating security in the community, and improving judicial decisions. This will help improve the performance of the police, increase the accuracy of criminal investigations, and play an effective role in preventing crime and high-risk behaviors in society. This article presents and analyzes the capabilities and capacities of artificial intelligence in police and similar examples used worldwide to prove the necessity of using artificial intelligence in the police. The main topics discussed include the performance of artificial intelligence in crime detection and prediction, the risk capacity of criminals and the ability to apply arbitray institutions, and the introduction of artificial intelligence programs implemented worldwide in the field of criminal investigation for police.

Keywords: police, artificial intelligence, forecasting, prevention, software

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Authors: Andrei Nastas, Sergiu Cernomopret

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This research addresses trafficking in human beings, in terms of the active subject and the victim of this crime, through the prism of national and international regulations in material and procedural criminal matters. For the correlative approach of both mentioned aspects, the active subject and the victim of trafficking in human beings, the research addresses both its constituent elements and the way to prevent and combat this phenomenon through criminal proceedings. As follows, trafficking in human beings, from a material criminal point of view, involves two subjects of this crime (active subject - offender and passive subject - victim), while their procedural status differs depending on the case (victim or injured party). The result of the research highlights some clarifications, which find a theoretical-practical basis in the legal provisions, the specialized doctrine, and the judicial practice.

Keywords: victim, active subject, abuse, injured party, crime

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Authors: Arlinda Memetaj

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A sound system of administrative justice represents a vital element of democratic governance. The proper control of public administration consists not only of a sound civil service framework and legislative oversight, but empowerment of the public and courts to hold public officials accountable for their decision-making through the application of fair administrative procedural rules and the use of appropriate administrative appeals processes and judicial review. The establishment of both effective public administration and administrative justice system has been for a long period of time among the most ‘important and urgent’ final strategic objectives of almost any country in the Balkans region, including Macedonia, Albania and Kosovo. Closely related to this is their common strategic goal to enter the membership in the European Union, which requires fulfilling of many criteria and standards as incorporated in EU acquis communautaire. The latter is presently done with the framework of the Stabilization and Association Agreement which each of these countries has concluded with the EU accordingly. To above aims, each of the three countries has so far adopted a huge series of legislative and strategic documents related to any aspects of their individual administrative justice system. ‘Changes and reforms’ in this field have been thus the most frequent terms being used in any of these countries. The three countries have already established their own national administrative judiciary, while permanently amending their laws on the general administrative procedure introducing thereby considerable innovations concerned. National administrative courts are expected to have crucial important role within the broader judiciary systems-related reforms of these countries; they are designed to check the legality of decisions of the state administration with the aim to guarantee an effective protection of human rights and legitimate interests of private persons through a regular, conform, fast and reasonable judicial administrative process. Further improvements in this field are presently an integral crucial part of all the relevant national strategic documents including the ones on judiciary reform and public administration reform, as adopted by each of the three countries; those strategic documents are designed among others to provide effective protection of their citizens` rights` of administrative justice. On the basis of the later, the paper finally is aimed at highlighting selective common challenges and problems of the three countries on their European road, while claiming (among others) that the current status quo situation in each of them may be overcome only if there is a proper implementation of the administrative courts decisions and a far stricter international monitoring process thereof. A new approach and strong political commitment from the highest political leadership is thus absolutely needed to ensure the principles of transparency, accountability and merit in public administration. The main methods used in this paper include the analytical and comparative ones due to the very character of the paper itself.

Keywords: administrative courts , administrative justice, administrative procedure, benefit, effective administrative justice, human rights, implementation, monitoring, reform

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Authors: Ahmet Ekinci

Abstract:

The new government system of Turkey can be described as hyper-presidentialism, this is because the president then becomes the arbiter of all powers. In another word, the power to enact decrees, appoint bureaucrats and judicial officials into offices, and the power to dissolve a parliament belongs solely to the president. As a strong presidency fuse with a disciplined party system as well as concurrent elections and 10 percent electoral threshold, the president possibly poses a great danger to the separation of powers. Additionally, with regards to the presidential term, the president constitutionally holds the power to be elected only for two terms in Turkey. However, Erdoğan and his supporters believe that the 2017 constitutional amendments that changed the system of government have reset the agenda. Thus, the 2017 amendments offered Erdoğan a secret opportunity to join the presidential election race for a third and even a fourth term.

Keywords: hyper-presidentialism, Turkish presidentialism, presidential decree, concurrent election, Erdogan’s term limit, Turkish government system

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Authors: Thiago R. Pereira

Abstract:

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

Keywords: hermeneutic, right answer, solipsism, Brazilian judiciary

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Authors: Charlotte Lülf

Abstract:

Migration flows cannot be tackled by single states but need to be addressed as a transnational and international responsibility. However, the current international framework staggers. Widely excluded from legal protection are people that flee from the indiscriminate effects of an armed conflict as well as people fleeing natural disasters. This paper as part of an on-going PhD Project deals with the current and partly contradicting approaches to the protection of so-called war- and climate refugees in the European Union. The analysis will emphasize and evaluate the role of the European judiciary to define, redefine and potentially expand legal protection. Changing jurisprudential practice of national and regional courts will be assessed, as will be their dialogue to interpret the international obligations of human rights law, migration laws and asylum laws in an interacting world.

Keywords: human rights law, asylum law, migration, refugee protection

Procedia PDF Downloads 241