Search results for: sharia court

Authors: Muhammad Farooq

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The present article explores the woman's consent as a paramount element in contracting a Muslim marriage. Also, whether permission of the wali (guardian) is a condition per se for a valid nikah (marriage deed) in the eye of law and Sharia. The researcher attempts to treat it through the related issues, inter alia; the marriage guardian, the women's legal capacity to give consent whether she is a virgin or nonvirgin and how that consent is to be given or may be understood. Does her laugh, tears or salience needs a legal interpretation as well as other female manifestations of emotion explained by the Muslim jurists? The silence of Muslim Family Law Ordinance 1961 (hereafter; MFLO 1961) in this regard and the likely reasons behind such silence is also inquired in brief. Germane to the theme, the various cases in which the true notion of woman's consent is interpreted by courts in Pakistan are also examined. In order to address the issue in hand, it is proposed to provide a brief overview of a few contemporary writers' opinions in which the real place of woman's consent in Muslim marriage is highlighted. Key to the idea of young Muslim woman's marriage, the doctrine of kafa'a (equality or suitability) between the man and woman is argued here to be grounded in the patriarchal and social norms. It is, therefore, concluded that such concept was the result of analogical reasoning and has less importance in the present time. As such it is not a valid factor in current scenarios to validate or invalidate marital bonds. A standard qualitative convention is used for this research. Among primary and secondary sources; for examples, Qur'an, Sunnah, Books, Scholarly articles, texts of law and case law is used to point out the researcher's view. In summation, the article is concluded with a bold statement that a young woman being a party to the contract, is absolutely entitled to 'full and free' consent for the Muslim marriage contract. It is the woman, an indispensable partaker and her consent (not the guardian' permission) that does validate or invalidate the said agreement in the eye of contemporary personal law and in Sharia.

Keywords: consent of woman, ejab (declaration), Nikah (marriage agreement), qabol (acceptance), sui juris (of age; independent), wali (guardian), wilayah (guardianship)

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Authors: Tugce Arslan

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For a communicative act to be carried out successfully, the speaker and the listener must consider certain principles in line with the intention–centered “Cooperative Principle” expressed by H. P. Grice. Violation of a communication principle causes the listener to make new inferences called “implicatures”. In this study, focusing on the linguistic use of H. P. Grice’s principles, we aim to find out which principles of conversation are generally followed in case files from different fields and which principles are frequently violated. Three case files were examined, and the violating and the abiding cases of the maxims were classified in terms of four categories (Quality, Quantity, Relevance and Manner). The results of this investigation is reported below (V: Violating, A: Abiding): Quality Quantity Relevance Manner V A V A V A V A Case 1 10 8 5 9 3 15 16 6 Case 2 4 5 11 6 2 11 7 14 Case 3 21 13 7 12 9 14 15 9 Total 35 26 23 27 14 40 38 29 The excerpts were selected from files covering three different areas: the Assize Court, the Family Court and the Commercial Court of First Instance. In this way, the relations between the types of violations and the types of courts are examined. Our main finding is that in the 1st and the 3rd file, as the cases of violation in “Quality” and “Manner” increase, the cases of violation in “Quantity” and “Relevance” decrease. In the second file, on the other hand, as the cases of violation in “Quantity” increase, the cases of violation in “Quality”, “Relevance” and “Manner” decrease. In the talk, we shall compare these results with the results obtained in the study of Tajabadi, Dowlatabadi, and Mehric (2014), which examined various case files in Iran. Our main finding is that in the study conducted in Iran, violations were found only on the principles of “Quantity” and “Relevance”, while violations were found on the principles of “Quality”, “Quantity” and “Manner” in this study. In this case, it shows us that there is a connection between at least two maxims. In both cases, it has been noticed that the “Quantity” maxim is a common denominator. Studies in this field can be enlightening for many areas such as discourse analysis, legal studies, etc. Accordingly, comments will be made about the nature of the violations mentioned in H. P. Grice’s “Cooperation Principle”. We shall also discuss various conversational practices that cannot be analysed with these maxims.

Keywords: comparative analysis, cooperation principle, forensic linguistics, pragmatic.

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Authors: Muhammad Iqbal Rachman, Mohammad Faisol Soleh

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The Law No. 26 Year 2000 about Indonesia’s Human Right Court became a new legal enforcement frame of human right law in Indonesia. The new spirit based on some international propulsion in order to enforce human right which basic right of everyone that appearance since in fetus. This matters indicated how crucial the arrangement of human right law, considering the role of state on human right enforcement in this context which became main pillar or instrument to accommodate citizen interest. Basically, the adopting of Law No. 26 Year 2000 came from the womb of concept international crimes regulation based on Rome Statute which became the international law instrument in order to legal enforce of international crimes. But in the other side, the enactment Rome Statute concept in Indonesia has facing with political and academics interest which resulted unaccommodating every type of international crimes in Law No. 26 Year 2000. The analyzing of political and academics background became the fundamental point to find out the solutions based on the regulation of Rome Statute concept matters in Indonesia.

Keywords: academic consideration, human right, political consideration, rome statute, unregulated concept

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Authors: Benjamin Newman

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The picture of an adverse contest between two parties has often been used as an archetypal description of the Anglo-American adversarial criminal trial. However, in actuality, guilty pleas and plea-bargains have been dominating the procedure for over the last half-a-century. Characterised by two adverse parties, the court adjudicative system in the Anglo-American world adhere to the adversarial procedure, and while further features have been attributed and the values that are embedded within the procedure vary, it is a system that we have no adequate theory. Damaska had argued that the adversarial conflict-resolution mode of administration of justice stems from a liberal laissez-faire concept of a value neutral liberal state. Having said that, the court’s neutrality has been additionally rationalised in light of its liberal end as a safeguard from the state’s coercive force. Both conceptions of the court’s neutrality conflict in cases where the by-standing role disposes of its liberal duty in safeguarding the individual. Such is noticeable in plea bargains, where the defendant has the liberty to plead guilty, despite concerns over wrongful convictions and deprivation of liberty. It is an inner liberal tension within the notion of criminal adversarialism, between the laissez-faire mode which grants autonomy to the parties and the safeguarding liberal end of the trial. Langbein had asserted that the adversarial system is a criminal procedure for which we have no adequate theory, and it is by reference to political and moral theories that the research aims to articulate a normative account. The paper contemplates on the above liberal-tension, and by reference to Duff’s ‘calling-to-account’ theory, argues that autonomy is of inherent value to the criminal process, being considered a constitutive element in the process of being called to account. While the aspiration is that the defendant’s guilty plea should be genuine, the guilty-plea decision must be voluntary if it is to be considered a performative act of accountability. Thus, by valuing procedural autonomy as a necessary element within the criminal adjudicative process, it assimilates a liberal procedure, whilst maintaining the liberal end by holding the defendant to account.

Keywords: liberal theory, adversarial criminal procedure, criminal law theory, liberal perfectionism, political liberalism

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Authors: Pujiyono, Reda Manthovani, Deny Tri Ardianto, Rabani Halawa, Isharyanto

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This research has background that the taxpayer (defendant) who has paid off the tax payable and the tax penalty payable after the tax case file has been transferred to the court, while the legality of stopping the prosecution of tax cases on the grounds that in the interest of state revenue is not regulated in the provisions of Law Number 8 of 1981 concerning The Criminal Procedure Code and Law Number 28 of 2007 concerning the Third Amendment to Law Number 6 of 1983 concerning General Provisions and Tax Procedures as amended several times, most recently by Law Number 16 of 2009 concerning Stipulation of Government Regulation in Lieu of Law Number 5 of 2008 concerning Fourth Amendment to Law Number 6 0f 1983 concerning General Provisions and Tax Procedures to become Law, even though at the investigation stage it regulates the mechanism for stopping the investigation for the sake of the interest of acceptance ne this is because before the case file is transferred to the court where at the request of the Minister of Finance of The Republic of Indonesia can stop the investigation in the interest of state revenue so that based on this phenomenon a legal vacuum is found. Therefore, a non-penal policy is needed from the public prosecutor to resolve tax crime cases without going through litigation in court through the penal mediation method using the Plea Bargaining System which adheres to the principles of restorative justice and obligative justice based on the ultimum remedium principle and the principle of opportunity in order to realize the principle of fast, simple and low cost justice (content principle). This research is a normative legal research, using a statutory approach, conceptual approach, and comparative law approach. Regulations that is used in many countries, include America, The Netherlands and Singapore. The results of this study indicate that there is a reformulation of the tax criminal justice system which regulates the mechanism, qualifications and authority to terminate the prosecution of tax cases in the interest of state revenues in order to achieve legal goals which are not only for legal certainty but more that, namely providing benefits and legal justice for people seeking justice.

Keywords: obligative justice, regulation, state reveneus, tax criminal

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Authors: Anna Pudlo

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The EU law encompasses many supranational legal systems (EU law, ECHR, international public law and constitutional traditions common to the Member States) which guarantee the protection of fundamental rights, with partly overlapping scopes of applicability, various principles of interpretation of legal norms and a different hierarchy. In EU law, the prohibition of discrimination on grounds of sexual orientation originates from both the primary and secondary EU legislation. At present, the prohibition is considered to be a fundamental right in pursuance of Article 21 of the Charter, but the Court has not yet determined whether it is a right or a principle within the meaning of the Charter. Similarly, the Court has not deemed this criterion to be a general principle of EU law. The personal and materials scope of the prohibition of discrimination on grounds of sexual orientation based on Article 21 of the Charter requires each time to be specified in another legal act of the EU in accordance with Article 51 of the Charter. The effect of the prohibition of discrimination on grounds of sexual orientation understood as above will be two-fold, for the States and for the Union. On the one hand, one may refer to the legal instruments of review of EU law enforcement by a Member State laid down in the Treaties. On the other hand, EU law does not provide for the right to individual petition. Therefore, it is the duty of the domestic courts to protect the right of a person not to be discriminated on grounds of sexual orientation in line with the national procedural rules, within the limits and in accordance with the principles set out in EU law, in particular in Directive 2000/78. The development of the principle of non-discrimination in the Court’s case-law gives rise to certain doubts as to its applicability, namely whether the principle as the general principle of EU law may be granted an autonomous character, with respect to the applicability to matters not included in the personal or material scope of the Directives, although within the EU’s competence. Moreover, both the doctrine and the opinions of the Advocates-General have called for the general competence of CJEU with regard to fundamental rights which, however, might lead to a violation of the principle of separation of competence. The aim of this paper is to answer the question what is the nature of the prohibition of discrimination on grounds of sexual orientation in EU law (a general principle in EU law, or a principle or right under the Charter’s terminology). Therefore, the paper focuses on the nature of Article 21 of the Charter (a right or a principle) and the scope (personal and material) of the prohibition of discrimination based on sexual orientation in EU law as well as its effect (vertical or horizontal). The study has included the provisions of EU law together with the relevant CJEU case-law.

Keywords: EU law, EU principles, non-discrimination in EU law, Charter of the Fundamental Rights

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Authors: Ikediobi Lottanna Samuel

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Days are gone when perpetrators of core international crimes hide under the cloak of sovereignty to go with impunity. The principle of international criminal responsibility is a reality. This move to end impunity for violation of human rights has led to the creation of international and hybrid tribunals, a permanent international criminal court, and increased prosecution of human rights violations in domestic courts. This article examines the attempts by the international community to bring perpetrators of heinous crimes to book. The work reveals the inadequacy of the current international mechanism for prosecuting core international crimes in order to end the culture of impunity and entrench the culture of accountability. It also identifies that ad hoc international criminal tribunals and the international criminal court face similar challenges ranging from lack of cooperation by nation states, non-existence of hierarchy of crimes, lack of effective enforcement mechanism, limited prosecutorial capacity and agenda, difficulty in apprehending suspects, difficulty in blending different legal tradition, absence of a coherent sentencing guideline, distant location of courts, selective indictment, etc. These challenges adversely affect the functioning of these courts. It is suggested that a more helpful way to end impunity would be to have a more robust and synergistic relationship between national, regional, and international approaches to prosecuting core international crimes.

Keywords: prosecution, criminal, international, tribunal, justice, ad hoc

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Authors: Aurélie Cassiers

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

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

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Authors: Katarzyna Kamińska

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Joint physical custody means that both parents after divorce or separation have the right and responsibility to take care of the child on the daily basis. In a joint physical custody arrangement, the child spends substantial, but not necessarily equal, time with both parents. Joint physical custody can be symmetric care arrangement or not. However, it is accepted in the jurisprudence that the best interests of the child is served when the child spends at least 35% of the time during a two-week period with each parent. Joint physical custody, also known as joint, dual, or shared residence, is a challenge in contemporary family law. It has its supporters and opponents. On the one hand, joint physical custody is beneficial because it provides children with frequent and continuous contact with a mother and father after their divorce or separation. On the other hand, it isn’t good for children to be shuttled back and forth between two residences. Children need a home base. The conclusion is therefore that joint physical custody can’t be seen as a panacea for all post-divorce or post-separation parenting cases and the court shouldn’t automatically make such a determination. The possibility to award this arrangement requires the court to carefully weigh the pros and cons of each individual case. It is difficult to say that joint physical custody is better than single physical custody in any case. It depends on the circumstances and needs of each family. It appears that an individual approach is going to be much better as opposed to a one-size-fits-all idea.

Keywords: joint physical custody, shared residence, dual residence, the best interests of the child

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Authors: Kurt Willems

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This research examines complaints against grading in higher education institutions in four different European regions: England and Wales, Flanders, the Netherlands, and France. The aim of the research is to examine the correlation between the applicable type of complaint handling on the one hand, and selected qualities of the higher education landscape and of public law on the other hand. All selected regions report a rising number of complaints against grading decisions, not only as to internal complaint handling within the institution but also judicially if the dispute persists. Some regions deem their administrative court system appropriate to deal with grading disputes (France) or have even erected a specialty administrative court to facilitate access (Flanders, the Netherlands). However, at the same time, different types of (governmental) dispute resolution bodies have been established outside of the judicial court system (England and Wales, and to lesser extent France and the Netherlands). Those dispute procedures do not seem coincidental. Public law issues such as the underlying legal nature of the education institution and, eventually, the grading decision itself, have an impact on the way the academic complaint procedures are developed. Indeed, in most of the selected regions, contractual disputes enjoy different legal protection than administrative decisions, making the legal qualification of the relationship between student and higher education institution highly relevant. At the same time, the scope of competence of government over different types of higher education institutions; albeit direct or indirect (o.a. through financing and quality control) is relevant as well to comprehend why certain dispute handling procedures have been established for students. To answer the above questions, the doctrinal and comparative legal method is used. The normative framework is distilled from the relevant national legislative rules and their preparatory texts, the legal literature, the (published) case law of academic complaints and the available governmental reports. The research is mainly theoretical in nature, examining different topics of public law (mainly administrative law) and procedural law in the context of grading decisions. The internal appeal procedure within the education institution is largely left out of the scope of the research, as well as different types of non-governmental-imposed cooperation between education institutions, given the public law angle of the research questions. The research results in the categorization of different academic complaint systems, and an analysis of the possibility to introduce each of those systems in different countries, depending on their public law system and higher education system. By doing so, the research also adds to the debate on the public-private divide in higher education systems, and its effect on academic complaints handling.

Keywords: higher education, legal qualification of education institution, legal qualification of grading decisions, legal protection of students, academic litigation

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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: Adam Reilly

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The major claim of this paper is that both the English and Canadian branches of the common law have been ill-served by the 'institutional'/'remedial' taxonomy of constructive trusts; what shall be termed the 'orthodox taxonomy'.  The orthodox taxonomy is found both within the case law and the attendant academic commentary.  In truth, the orthodox taxonomy is especially dangerous because it contains a kernel of truth together with a misconception; the interplay of both has caused more harm than the misconception alone would have managed.  The kernel of truth is that some trusts arise automatically when the necessary facts occur ('institutional') and other trusts arise only by way of court order ('remedial').  The misconception is that these two labels represent an exhaustive nomenclature of two distinct 'kinds' of constructive trust such that any particular constructive trust must necessarily be 'institutional' if it is not 'remedial' and vice versa.  The central difficulty is that our understanding of 'remedial' trusts is relatively poor, with the result that anyone using the orthodox taxonomy shall be led astray in one of three ways: (i) by rejecting it wholesale; (ii) by adopting one ‘type’ of trust to the exclusion of the other (as in English law); or (iii) by applying it as an analytical device with sub-optimal results which are difficult to defend.  This paper shall seek to resolve these difficulties by clarifying the criteria for identifying and distinguishing true 'remedial' constructive trusts.  It shall then provide some working examples of how English and Canadian private law at present misunderstand constructive trusts and how that misunderstanding might be resolved once we distinguish the orthodox taxonomy's kernel of truth from the misconception outlined above.

Keywords: comparative law, constructive trusts, equitable remedies, remedial constructive trusts

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Authors: Rainner Roweder

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Theme: The present paper aims to analyze the specificity of the judicial evidence linked to the subjects of dignity and personality rights, otherwise known as moral rights, in the determination of the truth and formation of the judicial reasoning in cases concerning these areas. This research is about the way courts in Brazilian domestic law search for truth and handles evidence in cases involving moral rights that are abundant and important in Brazil. The main object of the paper is to analyze the effectiveness of the evidence in the formation of judicial conviction in matters related to morally controverted rights, based on the Brazilian, and as a comparison, the Latin American legal systems. In short, the rights of dignity and personality are moral. However, the evidential legal system expects a rational demonstration of moral rights that generate judicial conviction or persuasion. Moral, in turn, tends to be difficult or impossible to demonstrate in court, generating the problem considered in this paper, that is, the study of the moral demonstration problem as proof in court. In this sense, the more linked to moral, the more difficult to be demonstrated in court that right is, expanding the field of judicial discretion, generating legal uncertainty. More specifically, the new personality rights, such as gender, and their possibility of alteration, further amplify the problem being essentially an intimate manner, which does not exist in the objective, rational evidential system, as normally occurs in other categories, such as contracts. Therefore, evidencing this legal category in court, with the level of security required by the law, is a herculean task. It becomes virtually impossible to use the same evidentiary system when judging the rights researched here; therefore, it generates the need for a new design of the evidential task regarding the rights of the personality, a central effort of the present paper. Methodology: Concerning the methodology, the Method used in the Investigation phase was Inductive, with the use of the comparative law method; in the data treatment phase, the Inductive Method was also used. Doctrine, Legislative, and jurisprudential comparison was the technique research used. Results: In addition to the peculiar characteristics of personality rights that are not found in other rights, part of them are essentially linked to morale and are not objectively verifiable by design, and it is necessary to use specific argumentative theories for their secure confirmation, such as interdisciplinary support. The traditional pragmatic theory of proof, for having an obvious objective character, when applied in the rights linked to the morale, aggravates decisionism and generates legal insecurity, being necessary its reconstruction for morally charged cases, with the possible use of the “predictive theory” ( and predictive facts) through algorithms in data collection and treatment.

Keywords: moral rights, proof, pragmatic proof theory, insufficiency, Brazil

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Authors: Rahmayanti, Theresia Simatupang, Ronald H. Sianturi

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Corruption criminal act develops rapidly since in the transition era there is weakness in law. Consequently, there is an opportunity for a few people to do fraud and illegal acts and to misuse their positions and formal functions in order to make them rich, and the criminal acts are done systematically and sophisticatedly. Some people believe that legal provisions which specifically regulate the corruption criminal act; namely, Law No. 31/1999 in conjunction with Law No. 20/2001 on the Eradication of Corruption Criminal Act are not effective any more, especially in onus probandi (the burden of proof) on corruptors. The research was a descriptive analysis, a research method which is used to obtain description on a certain situation or condition by explaining the data, and the conclusion is drawn through some analyses. The research used judicial normative approach since it used secondary data as the main data by conducting library research. The system of the burden of proof, which follows the principles of reversal of the burden of proof stipulated in Article 12B, paragraph 1 a and b, Article 37A, and Article 38B of Law No. 20/2001 on the Amendment of Law No. 31/1999, is used only as supporting evidence when the principal case is proved. Meanwhile, how to maximize the implementation of the burden of proof on the perpetrators of corruption criminal act in which the public prosecutor brings a corruption case to Court, depends upon the nature of the case and the type of indictment. The system of burden of proof can be used to eradicate corruption in the Court if some policies and general principles of justice such as independency, impartiality, and legal certainty, are applied.

Keywords: burden of proof, perpetrator, corruption criminal act

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Authors: Sandra Regina Cavalcante, Rodolfo A. G. Vilela

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Introduction: Work accidents and occupational diseases are a big problem for public health around the world and the main health problem of workers with high social and economic costs. Brazil has shown progress over the last years, with the development of the regulatory system to improve safety and quality of life in the workplace. However, the situation is far from acceptable, because the occurrences remain high and there is a great gap between legislation and reality, generated by the low level of voluntary compliance with the law. Brazilian laws provide procedural legal instruments for both, to compensate the damage caused to the worker's health and to prevent future injuries. In the Judiciary, the prevention idea is in the collective action, effected through Brazilian Class Actions. Inhibitory guardianships may impose both, improvements to the working environment, as well as determine the interruption of activity or a ban on the machine that put workers at risk. Both the Labor Prosecution and trade unions have to stand to promote this type of action, providing payment of compensation for collective moral damage. Objectives: To verify how class actions (known as ‘public civil actions’), regulated in Brazilian legal system to protect diffuse, collective and homogeneous rights, are being used to protect workers' health and safety. Methods: The author identified and evaluated decisions of Brazilian Superior Court of Labor involving collective actions and work accidents. The timeframe chosen was December 2015. The online jurisprudence database was consulted in page available for public consultation on the court website. The categorization of the data was made considering the result (court application was rejected or accepted), the request type, the amount of compensation and the author of the cause, besides knowing the reasoning used by the judges. Results: The High Court issued 21,948 decisions in December 2015, with 1448 judgments (6.6%) about work accidents and only 20 (0.09%) on collective action. After analyzing these 20 decisions, it was found that the judgments granted compensation for collective moral damage (85%) and/or obligation to make, that is, changes to improve prevention and safety (71%). The processes have been filed mainly by the Labor Prosecutor (83%), and also appeared lawsuits filed by unions (17%). The compensation for collective moral damage had average of 250,000 reais (about US$65,000), but it should be noted that there is a great range of values found, also are several situations repaired by this compensation. This is the last instance resource for this kind of lawsuit and all decisions were well founded and received partially the request made for working environment protection. Conclusions: When triggered, the labor court system provides the requested collective protection in class action. The values of convictions arbitrated in collective actions are significant and indicate that it creates social and economic repercussions, stimulating employers to improve the working environment conditions of their companies. It is necessary to intensify the use of collective actions, however, because they are more efficient for prevention than reparatory individual lawsuits, but it has been underutilized, mainly by Unions.

Keywords: Brazilian Class Action, collective action, work accident penalization, workplace accident prevention, workplace protection law

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Authors: Phutthiwat Waiyawuththanapoom

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This study has only one objective which is to identify the different in factors of choosing the distributor for food and non-food OTOP entrepreneur in Thailand. In this research, the types of OTOP product will be divided into two groups which are food and non-food. The sample for the food type OTOP product was the processed fruit and vegetable from Nakorn Pathom province and the sample for the non-food type OTOP product was the court doll from Ang Thong province. The research was divided into 3 parts which were a study of the distribution pattern and how to choose the distributor of the food type OTOP product, a study of the distribution pattern and how to choose the distributor of the non-food type OTOP product and a comparison between 2 types of products to find the differentiation in the factor of choosing distributor. The data and information was collected by using the interview. The populations in the research were 5 producers of the processed fruit and vegetable from Nakorn Pathom province and 5 producers of the court doll from Ang Thong province. The significant factor in choosing the distributor of the food type OTOP product is the material handling efficiency and on-time delivery but for the non-food type OTOP product is focused on the channel of distribution and cost of the distributor.

Keywords: distributor, OTOP, food and non-food, selection

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Authors: Muhammad Arzim Naim, Saiful Azhar Rosly, Mohamad Sahari Nordin

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The objective of this study is to investigate the factors affecting the rise of Shariah non-compliance risk that can bring Islamic banks to succumb to monetary loss. Prior literatures have never analyzed such risk in details despite lots of it arguing on the validity of some Shariah compliance products. The Shariah non-compliance risk in this context is looking to the potentially failure of the facility to stand from the court test say that if the banks bring it to the court for compensation from the defaulted clients. The risk may also arise if the customers refuse to make the financing payments on the grounds of the validity of the contracts, for example, when relinquishing critical requirement of Islamic contract such as ownership, the risk that may lead the banks to suffer loss when the customer invalidate the contract through the court. The impact of Shariah non-compliance risk to Islamic banks is similar to that of legal risks faced by the conventional banks. Both resulted into monetary losses to the banks respectively. In conventional banking environment, losses can be in the forms of summons paid to the customers if they won the case. In banking environment, this normally can be in very huge amount. However, it is right to mention that for Islamic banks, the subsequent impact to them can be rigorously big because it will affect their reputation. If the customers do not perceive them to be Shariah compliant, they will take their money and bank it in other places. This paper provides new insights of risks faced by credit intensive Islamic banks by providing a new extension of knowledge with regards to the Shariah non-compliance risk by identifying its individual components that directly affecting the risk together with empirical evidences. Not limited to the Islamic banking fraternities, the regulators and policy makers should be able to use findings in this paper to evaluate the components of the Shariah non-compliance risk and make the necessary actions. The paper is written based on Malaysia’s Islamic banking practices which may not directly related to other jurisdictions. Even though the focuses of this study is directly towards to the Bay Bithaman Ajil or popularly known as BBA (i.e. sale with deferred payments) financing modality, the result from this study may be applicable to other Islamic financing vehicles.

Keywords: Islamic banking, Islamic finance, Shariah Non-compliance risk, Bay Bithaman Ajil (BBA), principal axis factoring

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Authors: Sonny Dewi Judiasih

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The principle of a marriage is to achieve a happy and eternity family based on the willing of the God. The family has a fundamental role in the society as a social individual and as a nuclear family consists of father, mother, and children. Thus, each family always would like to have children who will continue the family. However, not all family will be blessed with children and consequently, there is family without children. Therefore, the said the certain family will do any effort to fulfill the wish to have children. One of the ways is to adopt children. The implementation of child adoption is conducted by the family who does not have children but sometimes child adoption is conducted by a family who has already children. The implementation of child adoption is based on the interest of the welfare and the intellectual of the said child. Moreover, it should be based on the social liability of the individual in accordance with the developing of the traditional values as part of the nation culture. The child adoption is conducted for the welfare of the child demonstrates that a change on the basic motive (value) whereby in the past the child adoption is to fulfill the wish of foster parent (to have children in the family). Nowadays the purpose of child adoption is not merely for the interest of foster parent but in particular for the interest, welfare and the future of the child. The development of the society has caused the occurrence of changes of perspective in the society which lead to a need for new law. The court of justice has an impact of such changes. It is evidenced by the court order for child adoption in the legal framework of certainty of law. The changes of motives (value) of the child adoption in the society can be fully understood in the event that the society fully understand that the ultimate purpose of Indonesia nation is to achieve a justice and prosperity society, i.e., social welfare for all Indonesian people.

Keywords: child adoption, family law, legal protection, children

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Authors: Xiaoyu Stephanie Ren

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With the increase of massive migration, economic polarization, as well as increasing awareness and respects for religious freedom in the world, women have become unprecedentedly vulnerable to trafficking involving religious coercion. Such cases can also bring enormous challenges for prosecution in which the prosecutor bears the burden of proving that the victim acted, or not acted in a certain way due to the exploitation of her belief system: (1) Jurors who are nonbelievers tend not to be convinced that something of intangible nature can act as the force to get victim into women trafficking situation; (2) Court more often than not rules in favor of victims in women trafficking cases involving religious exploitation only when there is physical coercion in addition to religious coercion; (3) Female victims are often reluctant to testify at court due to their godly fear and loyalty to trafficker. Using case study methodology, this paper examines the unique characteristics of religious coercion as means of trafficking in women from a legal perspective and proposes multiple ways based on communal beliefs that faith communities, as victims for such crime themselves, can act in order to help to end religious exploitation. The purpose of this paper is threefold: to improve acknowledgment for the role of religious coercion as a sole force for women trafficking situation; to discuss legal hurdles in prosecuting women trafficking cases involving religious coercion; and to propose collaboration across borders among faith communities to end such exploitation.

Keywords: women trafficking, sex violence, religious exploitation, faith community, prosecution, law

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Authors: Aleburu Rufus Edeki

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The activities of Boko Haram terrorist group have become worrisome in Nigeria. Boko Haram killed innocent civilians, destroyed schools, churches, military barracks, police stations, and other government establishments. The federal government of Nigerian Military engaged in counter-insurgency to curtail the activities of Boko Haram militant. The engagement of the military led to mass killing across the Northeast region. The reported cases of mass-killing led to petition written to the International Criminal Court by the civil society organization as a result of denial by the military authorities of their involvement. The investigation carried out by the International Criminal Court awash by denial of military involvement in war crimes. As a result of this denial, the ICC called for further investigation of war crimes by the military. This study was carried out among fifty-eight participants. In-depth interviews were conducted among the following participants: civilians 41; human rights commission 5 and civil society 12. This study revealed that professional ethics is associated with denial of military involvement in mass killing in the region. This study also revealed that denial is associated with personality. It was also found that social attributes such as trauma, shame, ostracism, criticism, and punishment are found with denial. It is therefore concluded in this study that protection is needed for war actors, so that situation of denial is minimal in post-conflict truth findings.

Keywords: Boko Haram, crime, insurgence, war

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Authors: Elisabeth Sundari, Anny Retnowati

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This research aims to examine the meaning of 'the best interests of the child' in Indonesia's rampant phenomenon of child marriage. The methodology used empirical and normative legal research by examining the parent's reason and the judges' considerations in granting child marriage dispensation applications. It takes data samples from judges' decisions purposively in two courts that differ in geographical and religious backgrounds to see data variation. Namely, the District Court and Religious Court of Yogyakarta City, as well as Gunung Kidul Regency, in the last three years (2020-2022). It analyses the data qualitatively to explore how judges interpreted 'the best interests of the child' in their decision. The results show that judges granted 100% of all child marriage dispensation applications filed by parents. The three reasons parents gave for applying for dispensation were that they were ashamed of having a pregnant child without being married, followed religious teachings, and obtained legal status for the baby. The judges supported those reasons by granting the dispensation application. The external factor of the child itself influenced the meaning of 'The best interests of the child' in marrying off children in Indonesia, such as cultural taboos, religious teachings, and obtaining legal status for the baby, rather than internal factors of the child, such as the will to marry, the mental and psychological readiness of the child to become a mother, as well as a wife. This research contributes to the finding that external factors, such as local culture and religion, can influence the meaning of 'the best interests of the child.'

Keywords: interests, child, Indonesia, marriage

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Authors: Amin Pashaye Amiri

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Freedom of information, according to which the public has a right to have access to government-held information, is largely considered as a tool for improving transparency and accountability in governments, and as a requirement of self-governance and good governance. So far, more than ninety countries have recognized citizens’ right to have access to public information. This recognition often took place through the adoption of an act referred to as “freedom of information act”, “access to public records act”, and so on. A freedom of information act typically imposes a positive obligation on a government to initially and regularly release certain public information, and also obliges it to provide individuals with information they request. Such an act usually allows governmental bodies to withhold information only when it falls within a limited number of exemptions enumerated in the act such as exemptions for protecting privacy of individuals and protecting national security. Some steps have been taken at the national and international level towards the recognition of freedom of information as a human right. Freedom of information was recognized in a few countries as a part of freedom of expression, and therefore, as a human right. Freedom of information was also recognized by some international bodies as a human right. The Inter-American Court of Human Rights ruled in 2006 that Article 13 of the American Convention on Human Rights, which concerns the human right to freedom of expression, protects the right of all people to request access to government information. The European Court of Human Rights has recently taken a considerable step towards recognizing freedom of information as a human right. However, in spite of the measures that have been taken, public access to government information is not yet widely accepted as an international human right. The paper will consider the degree to which freedom of information has been recognized as a human right, and study the possibility of widespread recognition of such a human right in the future. It will also examine the possible benefits of such recognition for the development of the human right to free expression.

Keywords: freedom of information, freedom of expression, human rights, government information

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Authors: Aishwarya Pothula

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Euthanasia in India is a politically dormant policy issue in the sense that discussions around it are sporadic in nature (usually with developments in specific cases) and it stays as a dominant issue in the public domain for a fleeting period. In other words, it is a non-political issue that has been unable to successfully get on the policy agenda. This paper studies how the Supreme Court of India (SC) plays a role in euthanasia’s policy making. In 2011, the SC independently put a law in place that legalized passive euthanasia through its judgement in the Aruna Shanbaug v. Union of India case. According to this, it is no longer illegal to withhold/withdraw a patient’s medical treatment in certain cases. This judgement, therefore, is the empirical focus of this paper. The paper essentially employs two techniques of discourse analysis to study the SC’s system of argumentation. The two methods, Text Analysis using Gasper’s Analysis Table and Frame Analysis – are complemented by two discourse techniques called metaphor analysis and lexical analysis. The framework within which the analysis is conducted lies in 1) the judicial process of India, i.e. the SC procedures and the Constitutional rules and provisions, and 2) John W. Kingdon’s theory of policy windows and policy entrepreneurs. The results of this paper are three-fold: first, the SC dismiss the petitioner’s request for passive euthanasia on inadequate and weak grounds, thereby setting no precedent for the historic law they put in place. In other words, they leave the decision open for the Parliament to act upon. Hence the judgement, as opposed to arguments by many, is by no means an instance of judicial activism/overreach. Second, they define euthanasia in a way that resonates with existing broader societal themes. They combine this with a remarkable use of authoritative and protective tones/stances to settle at an intermediate position that balances the possible opposition to their role in the process and what they (perhaps) perceive to be an optimal solution. Third, they soften up the policy community (including the public) to the idea of passive euthanasia leading it towards a Parliamentarian legislation. They achieve this by shaping prevalent principles, provisions and worldviews through an astute use of the legal instruments at their disposal. This paper refers to this unconventional role of the SC as ‘judicial entrepreneurship’ which is also the first scholarly contribution towards research on euthanasia as a policy issue in India.

Keywords: argumentation analysis, Aruna Ramachandra Shanbaug, discourse analysis, euthanasia, judicial entrepreneurship, policy-making process, supreme court of India

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Authors: M. Obydul Haque Kamaly

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This paper aims to provide a brief discussion on bay al-salam as a method of implementing Islamic Banking in the agricultural arena of Bangladesh. For this purpose, the nature and conditions of bay al-salam contracts will be first discussed. Next, the paper will focus on the comparison between conventional banks and Islamic banks and should answer how bay al-salam can be used as a popular method in agricultural transactions in the country. The paper is based on secondary data which is to describe bay al-salam as future proceedings for Islamic banking. Evidence suggests Islamic banking is very much practiced like modern conventional banking with certain restrictions imposed by Sharia and addresses a large number of business requirements successfully. Thus, it’s time for us to implement Islamic banking (bay al-salam) on our agricultural arena and to get most benefits from them.

Keywords: bay al-salam, agricultural banking, Islamic banking, implementation

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Authors: Brindusa Grigoriu

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Inscribing itself in the field of the history of multilingual communities with a focus on the evolution of language didactics, our paper aims at providing a pragmatic-interactional approach on a corpus proposing to scholars of the international scientific community a relevant text of early modern European literature: the first romance in French, The Conte of Flore and Blanchefleur by Robert d’Orbigny (1150). The multicultural context described by the romance is one in which an Arab-speaking prince, Floire, and his Francophone protégée, Blanchefleur, learn Latin together at the court of Spain and become fluent enough to turn it into the language of their love. This learning process is made up of interactional patterns of affective relevance, in which the proficiency of the protagonists in the domain of emotive acts becomes a matter of linguistic and pragmatic emulation. From five to ten years old, the pupils are efficiently stimulated by their teacher of Latin, Gaidon – a Moorish scholar of the royal entourage – to cultivate their competencies of oral expression and reading comprehension (of Antiquity classics), while enjoying an ever greater freedom of written expression, including the composition of love poems in this second language of culture and emotional education. Another relevant parameter of the educational process at court is that Latin shares its prominent role as a language of culture with French, whose exemplary learner is the (Moorish) queen herself. Indeed, the adult 'First lady' strives to become a pupil benefitting from lifelong learning provided by a fortuitous slave-teacher with little training, her anonymous chambermaid and Blanchefleur’s mother, who, despite her status of a war trophy, enjoys her Majesty’s confidence as a cultural agent of change in linguistic and theological fields. Thus, the two foreign languages taught at Spains’s court, Latin and French – as opposed to Arabic -, suggest a spiritual authority allowing the mutual enrichment of intercultural pioneers of cross-linguistic communication, in the aftermath of religious wars. Durably, and significantly – if not everlastingly – the language of physical violence rooted in intra-cultural solipsism is replaced by two Romance languages which seem to embody, together and yet distinctly, the parlance of peace-making.

Keywords: multilingualism, history of European language learning, French and Latin learners, multicultural context of medieval romance

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Authors: Saidia Houari

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The game of football is one of the global sports activities that have witnessed a remarkable development in recent years in the physical, technical, rhetorical and psychological aspects, so the modern play in different teams and international teams quickly and forcefully in the exact technical performance, and this is due to the interest of international coaches. The good training of the players during the youth stage at the level of various aspects to develop all the techniques that have a great effectiveness in competitions according to scientific methods studied. The muscle strength plays a very important role achieving the performance player during the game and it is clear the need for the player in many situations, especially when jumping to hit the ball head or the goal on the goal or long passes of different types and in the performance of various skills by force and speed appropriate to the possession of the ball or the control of the court of the court while overcoming the body weight during the game it is known that the stronger the muscles of the athlete and the reduced joints injuries, and the strength increases energy saving such as Latin phosphate and glycogen, and develop the player for a game football volitional qualities of the most important of courage, determination And self-confidence. There are also some skill movements that can not be performed without a certain level of strength, so the development of power may affect the effectiveness of the long-term training system.

Keywords: trainning program, maximum force and expolosive force, lowers limbs, under 17 years

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Authors: Neisha Shepherd

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In Australia, an independent children's lawyer is appointed to represent a child in parenting disputes in the Federal Circuit and Family Court of Australia, where there are complex issues such as child protection, family violence, high conflict, relocation, and parental alienation. The appointment of an Independent Children's Lawyer is to give effect in the family law proceedings of the United Nations Convention on the Rights of the Child, in particular Article 3.1, 12.1, and 12.2. There is a strong focus on alternative dispute resolution in the Australian Family Law jurisdiction in matters that are before the Court that has formed part of the case management pathways. An Independent Children's Lawyer's role is even more crucial in assisting families in resolving the most complex parenting disputes through mediation as they are required to act impartial and be independent of the Court and the parties. A child has the right to establish a professional relationship with the Independent Children's Lawyer. This relationship is usually established over a period of time, and the child is afforded the opportunity to talk about their views and wishes and participate in decisions that affect them. In considering the views and wishes of the child, the Independent Children's lawyer takes into account the different emotional, cognitive, and intellectual developmental levels, family structures, family dynamics, sibling relationships, religious and cultural backgrounds; and that children are vulnerable to external pressures when caught in disputes involving their parents. With the increase of child-inclusive mediations being used to resolve family disputes in the best interests of a child, an Independent Children's Lawyer can have a critical role in this process with the specialised skills that they have working with children in the family law jurisdiction. This paper will discuss how inclusive child mediation with the assistance of an Independent Children's Lawyer can assist in the resolution of some of the most complex parenting disputes by examining through case studies: the effectiveness and challenges of such an approach; strategies to work with child clients, adolescents, and sibling groups; ways to provide feedback regarding a child's views and wishes and express a child's understanding, actual experiences and perspective to parties in a mediation and whether it is appropriate to do so; strategies and examples to assist in developing parenting plans or orders that are in the best interest of a child that is workable and achievable; how to deal with cases that involve serious child protection and family violence and strategies to ensure that child safety is paramount; the importance of feedback to the child client. Finally this paper will explore some of the challenges for Independent Children's Lawyers in relation to child-inclusive mediations where matters do not resolve.

Keywords: child inclusive mediation, independent children's lawyer, family violence, child protection

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Authors: Sunil Tirkey

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The colonial court records between 1800 to 1939 in India show the existence of excessive dower, which were usually paid at the dissolution of marriage to discourage divorce. Supporting this view of excessive dower as a useful device, Mitra Sharafi (legal historian of modern South Asia) argues that inflated dower and divorce law protected Muslim women against instant divorce, making it too expensive for husbands to use it. Further, according to her, British judges enhanced women’s rights to dower and divorce by pronouncing rulings in favour of a high amount of dower to protect the women against the one-sided authority of men to divorce. Contrary to the view of Sharafi, this paper will argue that inflated dower did not protect the rights of women against instant divorce and undesirable marriage, and British judges did not really work to better the lives of Muslim women. To prove so, we shall firstly argue from the court cases that it was challenging for women to prove divorce on the husbands’ denial of divorce in order to avoid the payment of dower. Secondly, it was almost impossible for women to get rid of their undesirable marriage, as divorce was impartially dependent on their husbands. Thirdly, Muslim women were often deprived of their unpaid prompt dower due to the rigorous application of colonial law of limitation by British judges. Furthermore, the abolition of the office of Muslim legal experts from the colonial courts in 1864 deprived Muslim women not only to avail the interpretation of Islamic law but to benefit from the diversity and flexibility of Islamic law in obtaining their right to dower and divorce.

Keywords: courts, divorce, inflated dower, Islamic law, women’s rights

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Authors: D. Avnieli

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

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

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Authors: Kyllie Cripps

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In Australia, not dissimilar to other jurisdictions with indigenous populations, indigenous women are more likely to experience violence than any other section of society. In recent years in response to horrific examples of Indigenous women’s deaths, Australian Coronial courts have investigated, wanting to know more about the circumstances that led to the deaths. This paper critically examined 12 Coronial Court investigations from around Australia, analyzing them thematically. The analysis highlighted the differential vulnerability of indigenous women to intimate partner homicides. In all the cases reviewed, it was evident that the women’s deaths, in most instances were entirely preventable. Evidence was also presented demonstrating that services were aware of the women’s heightened risks but were unable to sufficiently coordinate themselves to provide wrap around support to minimise the risk of violence and to maximise the women’s safety. Consequently, putting the women in environments where their deaths were both predictable and inevitable. The profound system failings at the intersections of law, policy, and practice have ultimately cost indigenous women their lives. This paper firstly explores the nuances of the Coronial Court findings – demonstrating the similarities and differences present within the cases. Part two interrogates the reported system failings, and part three considers potential improvements in system integration to prevent future deaths. The paper concludes recognizing that Indigenous women play important valued roles in indigenous communities, their loss has profound costs and consequences, and to honor their memory, we must learn from their deaths and improve responses to intimate partner violence.

Keywords: homicide, intimate partner violence, indigenous women

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