Search results for: reasonableness

Authors: Nandita Narayan

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In most constitutional democracies, courts have been the gatekeepers of fundamental rights. The task of determining whether a violation is in fact justified, therefore, is judicial. Any state action, legislative or administrative, has to be tested by the application of two standards – first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it will be struck down as unconstitutional or ultra vires. This paper seeks to analyse the varying standards of reasonableness adopted by the Supreme Court of India where there is a violation of fundamental rights by state action. This is sought to be done by scrutinising case laws and classifying the legality of the violation under one of three levels of judicial scrutiny—strict, intermediate, or weak. The paper concludes by proving that there is an irregularity in the standards adopted, thus resulting in undue discretionary power of the judiciary which strikes at the very concept of reasonableness and ultimately becomes arbitrary in nature. This conclusion is reached by the comparison of reasonableness review of fundamental rights in other jurisdictions such as the USA and Canada.

Keywords: constitutional law, judicial review, fundamental rights, reasonableness, India

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Authors: Amós García Montaño

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In a democracy, a public policy must be developed within the regulatory framework and considering citizen participation in its planning, design, execution, and evaluation stages, necessary factors to have both legal support and sufficient legitimacy for its operation. However, the complexity and magnitude of certain public problems results in difficulties for the generation of consensus among society members, leading to unstable and unsuccessful scenarios for the exercise of the right to citizen participation and the generation of effective and efficient public policies. This is the case of public policies against corruption, an issue that in Mexico is difficult to define and generates conflicting opinions. To provide a possible solution to this delicate reality, this paper analyzes the principle of reasonableness as a tool for identifying the basic elements that guarantee a fundamental level of the exercise of the right to citizen participation in the fight against corruption, adopting elements of human rights indicator methodologies. In this sense, the relevance of having a legal framework that establishes obligations to incorporate proactive and transversal citizen participation in the matter is observed. It is also noted the need to monitor the operation of various citizen participation mechanisms in the decision-making processes of the institutions involved in the fight and prevention of corruption, which lead to an increase in the improvement of the perception of the citizen role as a relevant actor in this field. It is concluded that the principle of reasonableness is presented as a very useful tool for the identification of basic elements that facilitate the fulfillment of human rights commitments in the field of public policies.

Keywords: anticorruption, public participation, public policies, reasonableness

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Authors: Ashfaq M. Naikwadi

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Decided cases of medical negligence, mostly are not settled in the lower courts. Majority of them reach up to the apex courts. This is mostly due to different interpretations of the term medical negligence. After studying various cases of medical negligence it is found that in most of the cases the doctors/hospitals are not held liable. There are different interpretations of law concerning medical services. Globally the principles deciding medical negligence are same, viz. Legal duty of care - breach of that duty - direct causation resulting in damages. Since ordinary negligence is not punishable by law, doctors/hospitals have defenses to save themselves from liability. Complaints of negligence come to the courts whose judges mostly are not oriented with medical services or health sciences. Matters of medical negligence are decided on the basic principles of reasonableness and prudence or by relying on the expert’s opinion. Deciding reasonableness or prudence is a complex issue in case of medical services. Again expert opinion is also questionable as an expert in case of medical negligence is appointed from the same field and same faculty. There is a chance of favoritism to the doctor/hospital. The concept of vicarious liability is not widely applied to in many of the medical negligence cases. Established cases used as precedents were studied to understand the basic principles in deciding medical negligence. This paper evaluates the present criteria in interpreting medical negligence and concludes with suggesting reforms required to be made in deciding matters of medical negligence under the consumer laws.

Keywords: consumer, doctors, laws, medical negligence

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Authors: Kunyanuth Kularbphettong, Cholticha Tongsiri

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This paper aims to create the model for student in choosing an emphasized track of student majoring in computer science at Suan Sunandha Rajabhat University. The objective of this research is to develop the suggested system using data mining technique to analyze knowledge and conduct decision rules. Such relationships can be used to demonstrate the reasonableness of student choosing a track as well as to support his/her decision and the system is verified by experts in the field. The sampling is from student of computer science based on the system and the questionnaire to see the satisfaction. The system result is found to be satisfactory by both experts and student as well.

Keywords: data mining technique, the decision support system, knowledge and decision rules, education

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Authors: Yoke-Mui Lim, Yahaya Ahmad

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Conservation works in Malaysia that is procured by public organisation usually follow the traditional approach where the works are tendered based on Bills of Quantities (BQ). One of the purposes of tendering is to enable the selection of a competent contractor that offers a competitive price. While competency of the contractors are assessed by their technical knowledge, experience and track records, the assessment of pricing will be dependent on the tender amount. However, the issue currently faced by the conservation works sector is the difficulty in assessing the competitiveness and reasonableness of the tender amount due to the high variance between the tenders amount. Thus, this paper discusses the factors that cause difficulty to the tenderers in pricing competitively in a bidding exercise for conservation tenders. Data on tendering is collected from interviews with conservation works contractors to gain in-depth understanding of the barriers faced in pricing tenders of conservation works. Findings from the study lent support to the contention that the variance of tender amount is very high amongst tenderers. The factors identified in the survey are the format of BQ, hidden works, experience and labour and material costs.

Keywords: building conservation, Malaysia, bill of quantities, tender

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Authors: Yan Li, Yujiang Gao

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Passengers are the main users of the airport. Whether the travel experience of passengers in the airport is comfortable or not is an important indicator for evaluating the reasonableness of airport design. Taking the Terminal 3 of Beijing Capital International Airport as an example, this paper analyzes the airport’s solution to the problem of passengers’ inconvenience caused by lost directions, excessive congestion, and excessively long streamlines during passenger use. First of all, by using the method of analyzing the design of architectural function streamlines, the design of interior spaces of buildings, and the interrelationship between interior design and passenger experience, it was first concluded that the airport is capable of performing the two major problems of easy disorientation and excessive congestion. Later, by using the method of analyzing architectural function streamlines and collecting passenger experience evaluations, it was concluded that the airport could not solve the inconvenience caused by excessively long streamlines to passengers. Finally came to the conclusion that the airport design meets the demand in terms of the overall design of the passenger experience, but the boarding line is still relatively long and some fly in the ointment.

Keywords: passengers’ experience, terminal 3 of Beijing capital international airport, lost directions, excessive congestion, excessively long streamlines

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Authors: Pi-Hsia Hung

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The development of mathematical competency has individual benefits as well as benefits to the wider society. Children who begin school behind their peers in their understanding of number, counting, and simple arithmetic are at high risk of staying behind throughout their schooling. The development of effective strategies for improving the educational trajectory of these individuals will be contingent on identifying areas of early quantitative knowledge that influence later mathematics achievement. A computer-based quantity assessment was developed in this study to investigate the characteristics of 2nd and 3rd grade slow learners in quantity. The concept of quantification involves understanding measurements, counts, magnitudes, units, indicators, relative size, and numerical trends and patterns. Fifty-five tasks of quantitative reasoning—such as number sense, mental calculation, estimation and assessment of reasonableness of results—are included as quantity problem solving. Thus, quantity is defined in this study as applying knowledge of number and number operations in a wide variety of authentic settings. Around 1000 students were tested and categorized into 4 different performance levels. Students’ quantity ability correlated higher with their school math grade than other subjects. Around 20% students are below basic level. The intervention design implications of the preliminary item map constructed are discussed.

Keywords: mathematics assessment, mathematical cognition, quantity, number sense, validity

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Authors: Monika Michałowska, Anna Alichniewicz

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Detrimental outcomes of advanced maternal age on the chances of fertilization, pregnancy as well as mother and fetus health have been recognized for several decades. It seemed interesting to investigate whether there is a comparable awareness of the detrimental influence on the reproductive outcomes of late fatherhood, given that it has been already ten years since an intense and growing interest concerning later-age fatherhood commenced in medical research. To address that issue a two-step research was done. First, we performed a review of the subject literature to answer the following questions: 1) What age is defined as advanced?; 2) Is the same age defined as advanced in both genders?; 3) What terminology concerning age issues is used?; 4) Is the same age terminology used regarding both genders? The second part of our studies was devoted to the views of medical students. This part of our research comprised both quantitative and qualitative studies. Opinions of medical students in one of the Polish medical universities on several issues connected with assisted reproduction technology (ART) were gathered: 1) students’ attitude to in vitro fertilization (IVF) for women over 40 and for postmenopausal women; 2) students’ attitude to late fatherhood; 3) students’ reasoning given against acceptability of IVF procedure for all of these group of patients involved in an IVF procedure. Our analyses revealed that: First, there is no universal definition of the term ‘advanced age’; secondly, there is a general tendency to adopt different age limits depending on whether they refer to maternal or paternal age, but no justification is provided by the researchers explaining why they set different age limits for women and men; thirdly, the image of postponed fatherhood stands in stark contrast to postponed motherhood - while postponed fatherhood is frequently portrayed as a reasonable and conscious decision enabling a stable family environment for a child, the reasonableness of postponed motherhood is often questioned; finally, the bias regarding maternal versus paternal age is deeply embedded in medical students’ attitude to IVF for women over 40 and for postmenopausal women.

Keywords: gender stereotypes, reproductive medicine, maternal age, paternal age

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Authors: Christiena Van Der Bank, Marjone Van Der Bank, Ronelle Prinsloo

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The constitutional right to a healthy environment and the constitutional duty imposed on the state actively to protect the environment fulfill the specific duties to prevent pollution and ecological degradation and to promote conservation. The aim of this paper is to draw attention to the relationship between child rights and the environment. The focus is to analyse government’s responses as mandated with section 24 of the Bill of Rights for ensuring the right to a clean and healthy environment. The principle of sustainability of the environment encompasses the notion of equity and the harm to the environment affects the present as well as future generations. Section 24 obliges the state to ensure that the legacy of future generations is protected, an obligation that has been said to be part of the common law. The environment is an elusive and wide concept that can mean different things to different people depending on the context in which it is used for example clean drinking water or safe food. An extensive interpretation of the term environment would include almost everything that may positively or negatively influence the quality of human life. The analysis will include assessing policy measures, legislation, budgetary measures and other measures taken by the government in order to progressively meet its constitutional obligation. The opportunity of the child to grow up in a healthy and safe environment is extremely unjustly distributed. Without a realignment of political, legal and economic conditions this situation will not fundamentally change. South Africa as a developing country that needs to meet the demand of social transformation and economic growth whilst at the same time expediting its ability to compete in global markets, the country will inevitably embark on developmental programmes as a measure for sustainable development. The courts would have to inquire into the reasonableness of those measures. Environmental threats to children’s rights must be identified, taking into account children’s specific needs and vulnerabilities, their dependence and marginalisation. Obligations of states and violations of rights must be made more visible to the general public.

Keywords: environment, children rights, pollution, healthy, violation

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Authors: Donato Vese

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According to the common interpretation, in a legal system, public powers are established by law. Exceptions are admitted in an emergency or particular relationship with public power. However, we currently agree that law allows public administration a margin of decision, even in the case of non-discretionary acts. Hence, the administrative decision not exclusively established by law becomes the rule in the ordinary state of things, non-only in state of exception. This paper aims to analyze and discuss different ideas on discretionary power on the Rule of Law and Rechtsstaat. Observing the legal literature in Europe and Nord and South America, discretionary power can be described as follow: it could be considered a margin that law accords to the executive power for political decisions or a choice between different interpretations of vague legal previsions. In essence, this explanation admits for the executive a decision not established by law or anyhow not exclusively established by law. This means that the discretionary power of public administration integrates the law. However, integrating law does not mean to decide according to the law, but it means to integrate law with a decision involving public power. Consequently, discretionary power is essentially free will. In this perspective, also the Rule of Law and the Rechtsstaat are notions explained differently. Recently, we can observe how the European notion of Rechtsstaat is founded on the formal validity of the law; therefore, for this notion, public authority’s decisions not regulated by law represent a problem. Thus, different systems of law integration have been proposed in legal literature, such as values, democracy, reasonableness, and so on. This paper aims to verify how, looking at those integration clauses from a logical viewpoint, integration based on the recourse to the legal system itself does not resolve the problem. The aforementioned integration clauses are legal rules that require hard work to explain the correct meaning of the law; in particular, they introduce dangerous criteria in favor of the political majority. A different notion of public power can be proposed. This notion includes two main features: (a) sovereignty belongs to persons and not the state, and (b) fundamental rights are not grounded but recognized by Constitutions. Hence, public power is a system based on fundamental rights. According to this approach, it can also be defined as the notion of public interest as concrete maximization of fundamental rights enjoyments. Like this, integration of the law, vague or subject to several interpretations, must be done by referring to the system of fundamental individual rights. We can think, for instance, to fundamental rights that are right in an objective view but not legal because not established by law.

Keywords: administrative discretion, free will, fundamental rights, public power, sovereignty

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Authors: Pamela R. Jackson, Andrea Hawkins-Daarud, Cassandra R. Rickertsen, Kamala Clark-Swanson, Scott A. Whitmire, Kristin R. Swanson

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Glioblastoma Multiforme (GBM), the most common primary brain tumor, often presents with hyperintensity on T2-weighted or T2-weighted fluid attenuated inversion recovery (T2/FLAIR) magnetic resonance imaging (MRI). This hyperintensity corresponds with vasogenic edema, however there are likely many infiltrating tumor cells within the hyperintensity as well. While MRIs do not directly indicate tumor cells, MRIs do reflect the microenvironmental water abnormalities caused by the presence of tumor cells and edema. The inherent heterogeneity and resulting MRI features of GBMs complicate assessing disease response. To understand how hyperintensity on T2/FLAIR MRI may correlate with edema in the extracellular space (ECS), a multi-compartmental MRI signal equation which takes into account tissue compartments and their associated volumes with input coming from a mathematical model of glioma growth that incorporates edema formation was explored. The reasonableness of two possible extracellular space schema was evaluated by varying the T2 of the edema compartment and calculating the possible resulting T2s in tumor and peripheral edema. In the mathematical model, gliomas were comprised of vasculature and three tumor cellular phenotypes: normoxic, hypoxic, and necrotic. Edema was characterized as fluid leaking from abnormal tumor vessels. Spatial maps of tumor cell density and edema for virtual tumors were simulated with different rates of proliferation and invasion and various ECS expansion schemes. These spatial maps were then passed into a multi-compartmental MRI signal model for generating simulated T2/FLAIR MR images. Individual compartments’ T2 values in the signal equation were either from literature or estimated and the T2 for edema specifically was varied over a wide range (200 ms – 9200 ms). T2 maps were calculated from simulated images. T2 values based on simulated images were evaluated for regions of interest (ROIs) in normal appearing white matter, tumor, and peripheral edema. The ROI T2 values were compared to T2 values reported in literature. The expanding scheme of extracellular space is had T2 values similar to the literature calculated values. The static scheme of extracellular space had a much lower T2 values and no matter what T2 was associated with edema, the intensities did not come close to literature values. Expanding the extracellular space is necessary to achieve simulated edema intensities commiserate with acquired MRIs.

Keywords: extracellular space, glioblastoma multiforme, magnetic resonance imaging, mathematical modeling

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