This article analyses jurisdiction regarding administrative proceedings (lawsuits) in Jordan and France. Moreover, it also discusses the fact that jurisdiction regulates two matters of the utmost importance: the distribution of jurisdiction between ordinary and administrative jurisdictions and the distribution of jurisdiction between administrative jurisdictions themselves in States whose jurisdiction in administrative proceedings is distributed to more than one administrative organ. Moving on, this research was conducted using several research approaches such as, the comparative and analytical (...) approach. The research concluded with a number of conclusions and recommendations, the most important of which was the establishment of an Administrative Proceedings Management Service (APMS), as did the French Administrative Judicial Code, in which attendance was compulsory. To add on, the office of the Administrative Proceedings Administration must have a judge of its own, which corresponds to the post of the judge in the French Administrative Court. The judge will handle the completion of the data regarding both lawsuit parties, and request the documents needed for the case at hand. With that being said, the Jordanian Constitutional Court must reverse its interpretative decision, stating that the administrative justice is part of the ordinary judiciary—in referral to The Constitutional Court’s interpretation of the provisions of the Constitution, which considered the administrative judiciary as an integral part of the ordinary judiciary. Lastly, the research concluded that The French Administrative Judiciary must be taken into consideration regarding the establishment of an administrative judiciary independent from all aspects of the ordinary judiciary, and the explicit introduction of the dual judicial system. (shrink)

This article examines the role bureaucracy has in enhancing the social diversity of judiciaries. It does so by analyzing the Israeli judiciary and its reforms over the last three decades, and the interaction of these reforms with the appearance of intersectional judges—Arab women, Jewish women of Orthodox background, and Jewish women from geographic and economic peripheries—into the Israeli judiciary. Based on an original empirical study, the article shows that the career paths of intersectional judges include administrative roles (...) in the judiciary more often than non-intersectional judges. The article further demonstrates how these administrative career paths were shaped by bureaucratic-minded reforms. The Israeli case study thus shows how the bureaucratic design of the judiciary can accommodate diversity efforts, sometimes unintendedly, and discusses the merits, boundaries, and drawbacks of such bureaucratic design. (shrink)

Judicial review (richterliches Prüfungsrecht), administrative review (Verwaltungsgerichtbarkeit), and constitutional review (Verfassungsgerichtsbarkeit) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with the U.S. Supreme (...) Court, or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned. (shrink)

Specialized Justice addresses the question of the desirability of specialization in the administration of justice. Should there be more, rather than less, sub-division of the judiciary into specialized tribunals? What is most desirable in terms of efficiency, speed, true justice, and cost? The author attempts to answer these questions both by examining theoretical paradigms and also by describing the results of an empirical study which he has undertaken. He concludes by examining variables that apply in different jurisdictions and which (...) should, if accounted for properly, allow generalized lessons to be extracted from the individual studies. (shrink)

We set out by tracking the political vicissitudes of the administration of justice and their connections with a range of phenomena: the neglect by politicians; a series of events and scandals and the very curious reactions of the judicial apparatus; several parliamentary investigation commissions without much effect. Then we take a critical look at partisan politicisation of the magistrature: negative evalution of their output thrives to it; but there are also partisan appointments and promotions, even absence and refusal of training. (...) Many contextual factors hinder a normal, acceptable process of politicisation: over- and underregulation, bad legislation, misconception on contra! over the administration of justice and over judges, non-democratic decisionmaking within the organisation of the magistrature, the development of wrong relationship inside the trias politica; but also other more external conditions were not met neither. We wind up with an examination of the assesment of recent governmental proposals: an improvement of criminal and judicial inquiries; foundation of a national advisory body for the magistrature; simplification of the legislation; modernisation of the courts activities; a more objective recruitment and selection system; more easy access to justice etc. The question raises as to wether it suffices to tinker with the sy stem of the administration of justice alone... Between the Belgian and the Italian situations are similarities and relevant differences. (shrink)

This paper discusses the nature of administrative judiciary through Decision No (10) of 2013 which stipulates considering administrative courts a part of regular courts and the effect of this decision on the scope of referral due to lack of jurisdiction, specifically, referral between civil courts and administrative courts. This paper found, through evaluating the decision of the constitutional court, that the considerations this decision was based on are invalid and according to the provisions of the constitution (...) and the regular Court Establishment Law, the administrative judiciary is merely a judicial entity independent from regular courts and could not be a part thereof. However, despite the necessity of abiding to the decision of the constitutional court, we concluded that it has no effect on deciding inadmissibility of referral due to lack of jurisdiction between regular and administrative courts. Although case law, prior to issuing the decision of the constitutional court, considered that the basis of inadmissibility is that the provision of Article (112) of the Civil Procedure Law is limited to regular courts, which administrative courts are not a part thereof; considering that there are other justifications to decide inadmissibility of referral between civil courts and administrative courts, most importantly the difference of judicial procedures followed before each of these courts. Thus, in this paper we provided several recommendations, most importantly, the necessity of interference of the constitutional legislator by explicitly stipulating to consider administrative judiciary as an independent judicial entity. As well, to amend the provision of Article (112) of the Civil Procedures Law by explicitly stipulating not to include referral due to lack of functional competence. (shrink)

When the Mamluk Sultan Qalawun (1279-1290) moves to Syria with her army to fight the Mongols, martial law is declared in Egypt. Kalavun's son as heir Salih Ali in Egypt, published to Zaynaddin Ketboğa a tazkire that dated April-1281 containing the martial law decisions. Tezkire talks about the duties and responsibilities of administrators in the context of state-security-service. These decisions are important state affairs in the flow of daily life such as the judiciary, law, justice, security, transportation, service, trade, (...) land, fair tax system, control of civil servants and state affairs. In addition, the healthy living conditions of the detainees, It also includes issues such as meeting the needs of the detainees such as churches and baths. Tazkire decisions aiming to ensure the flow of daily life in Egypt during wartime without causing a possible instability are always valid state policies aiming at state order and social welfare. In our article, we will talk about this tezkire, which was narrated as a full text by İbnü'l-Furât (d. 1405) and Kalkaşendî (d. 1418). (shrink)

"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.

"ACT Administrative Appeals Tribunal Decisions." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (200), pp. 42.

In The Ethics of Food, Gregory E. Pence brings together a collection of voices who share the view that the ethics of genetically modified food is among the most pressing societal questions of our time. This comprehensive collection addresses a broad range of subjects, including the meaning of food, moral analyses of vegetarianism and starvation, the safety and environmental risks of genetically modified food, issues of global food politics and the food industry, and the relationships among food, evolution, and human (...) history. (shrink)

As a promising Social Science Methodology, Structural/Mechanism Explanation (SME) retains the advantages of mechanism-based explanation (ME), particularly its focus on “identifying causal patterns from micro-level social phenomena.” It also acknowledging the role of “structure”—seen as “macro-level conditions”—in incentivizing or disincentivizing key mechanisms, thus proving valuable for forecasting their emergence and decline. This article explores the theory of SME and applies it to examine how a revitalized “Legalist political structure coupled with a Confucianist ideological structure” can forecast the mechanisms by which (...) China’s National Social Credit System disciplines and punishes the citizens. This is observed across domains of legislation, administration, judiciary, and propaganda. (shrink)

Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors' use of new technologies, as well as (...) the Internet's impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the "right to be forgotten," cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles. (shrink)

This book critically analyzes emerging issues and challenges in delivering timely justice to common people. It brings a wide range of contemporary and relevant issues relating to the gross violation of human rights and presents situation-based evidence from, and first-hand experiences of behavioral, social and legal professionals. It deals with themes such as holding administrations accountable and securing justice, challenges for the judiciary in the early disposal of cases, challenges to the forensic community, green federalism and environmental justice, current (...) threats to human rights, ethics in the criminal justice system and honor killing from socio-cultural perspectives. Topical and comprehensive, this book will be an excellent read for scholars and researchers of political studies, legal studies, human rights, psychology, behavioural studies, political sociology, sociology, development studies, governance and public policy, environmental studies and South Asian studies. It will also interest policymakers, nongovernmental organizations, activists and professionals in the field. (shrink)

The paper dealt with the control on political corruption in Italy, in particular with the reasons why most of the control mechanisms did not work for a long time, allowingfor the development of"tangentopoli". First of all, we briefly discussed the reasons why the controls ''from below"--that is, from citizens or electors--did not function in Italy: the pervasive occupation of the administration and the civil society by the political parties, as well as "secret" agreements between political parties in order to avoid (...) political scandals were discussed.The paper continued by analyzing two types of institutional control: the administrative controls and the judiciary controls. In the second part, we presented some main characteristics of the Italian public administration that hampered internal controls, the informal control of parties over the bureaucrats through clientelism and complicity in corruption being one among them. In the third part, we focused on the peculiar characteristics of a magistracy that enjoyed of a very high degree of format autonomy from the political power, but was "pushed" towards politics for reasons as different as complicity in corruption and the need to "substitute" for the weak policy making capacity of political parties. In the fourth part, we reviewed some reform bills to deal with the control of political corruption. (shrink)

This article provides an account of rent-seeking in relation both to economic policies and political practices in South Africa. The article draws attention to continuities and similarities in this regard between the two distinct periods of nationalist rule from 1948 to 1994 and from 1994 to 2012. The economic dimensions that are specifically addressed are industrial policy, the labour market, state administration and tenders and service delivery and welfare. The more specifically political dimensions addressed include the electoral system, the relationship (...) between constitutionalism and the judiciary, and the rule of law. The article highlights the dangers posed by excessive rent-seeking and especially its negative implications for redistribution, economic growth and the consolidation of democracy in a highly unequal society. (shrink)

The scandals of the 1980s, extending into the 1990s, came as a profound shock to Australians and New Zealanders. Both countries have prided themselves – somewhat smugly and naively – on being open, fair and honest societies. So it was very disillusioning to see both corruption and gross dereliction of duty exposed in virtually every sphere of public life. Perhaps the most positive outcome, however, amidst an almost daily diet of amazing revelations, has been the ability of the system – (...) and especially the judiciary and the media – to expose and deal with corruption even at the highest level.Following an extensive survey and literature review, it is clear that there is now widespread awareness of the need for reform in many areas of public administration, corporate governance and professional behaviour. However, a continuing cause for concern is the lack of leadership in identifying and addressing complex ethical dilemmas, particularly in the areas of conflict of interest and disclosure. (shrink)

Public interest is intended to mean a consolidation of the prevailing ends of the legal and political order of a democratic state. This is a vague legal concept that generally carries the risks of confusion and manipulation. The undoubted difficulties involved in its determination often lead to it being credited (or discredited) as an ideological concept. Administrative doctrine holds that vague legal concepts do not widen administrative discretion and do not open up a route to arbitrariness. However, neither (...) the legislator nor the administration nor the judiciary have managed to avoid the risks of indeterminacy. Perhaps the best guarantee for achieving a reasonable validation of this concept is to establish a strong relationship between public interest and democracy. Public interest as distinguished from the metaphysical idea of natural law and the common good, must be above all a democratic value, in that its definition should be in the hands of democratically legitimated power and its implementation must involve the protection and realization of a greater number of private interests. From another perspective, the crisis that always grip the concept requires us to emphasize the need for public interest to be a matter for eachs citizen, that is, the pursuit of general interest involves the ability of every citizen to put a distance between it and their private interests. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Feminist Studies 46, no. 2. © 2020 by Feminist Studies, Inc. 489 Anna Romina Guevarra and Maya Arcilla The Source of Actual Terror: The Philippine Macho-Fascist Duterte  What is JUSTICE with the violence you’ve waged  What is FREEDOM? Our people are encaged  What is JUSTICE with the violence you’ve waged?  What is FREEDOM? Our people are encaged  We have nothing to lose—nothing but our (...) chains  We have nothing to lose—nothing but our chains  Ang tao, ang bayan—ngayon ay lumalaban  Ngayon ay lumalaban—ang tao ang bayan 1  We will, we will oust you!  We will, we will oust you! —Lyrics of a chant at a Chicago protest rally, July 8, 20202 On July 8, 2020, in front of the Philippine Consulate of Chicago, a group of activists representing multiple transnational organizations committed to the pursuit of democracy, participated in a Global Day of Action against an Anti-Terrorism Law (ATL) passed in the Philippines five days earlier. This particular rally was led by fierce student and community organizers and workers who loudly proclaimed their opposition to President Rodrigo Duterte’s misogynistic and fascist measures. The epigraph 1. The people, the nation—today they fight / Today they fight—the people, the nation. 2. Song written by Charmaine Balisalisa. 490 Anna Romina Guevarra and Maya Arcilla above captures the lyrics of one young activist’s chant directed at Duterte and choreographed to the tune of Queen’s “We will Rock You.” People followed her steps and gestures rhythmically and in unison, accompanying her chant with sounds from a gangsa (gong), bells, a skateboard tapping the ground, and an empty bucket. There have been multiple protests denouncing Duterte since he assumed power in 2016, but on this particular day, the sense of outrage and urgency was especially palpable in the face of this new law aimed at suppressing dissent. This legislation marked a high point in Duterte’s efforts to exert authoritarian control, and it is significant that opposition to his regime has taken on a specifically feminist character. The Philippines Anti-Terrorism Act of 2020 (Republic Act No. 11479), signed into law on July 3, 2020, amends the Philippines Human Security Act of 2007 by expanding the government’s power and scope for defining what constitutes “terrorism.” It consolidates power through the creation of an Anti-Terrorism Council (ATC) appointed by the President and empowered to act without oversight from the judiciary or legislature. The ATC can order mass arrests without warrants and detain individuals without due process for the mere suspicion of being involved in “terrorist” activities. This Law violates the Philippine Constitution’s Bill of Rights by eliminating free speech, violating the people’s right to privacy, and criminalizing individuals on suspicion of wrongdoing. As the law stipulates, anyone involved in “creating an atmosphere and spreading a message of fear” and “provoking or influencing by intimidation the government or any of its international organizations” will be construed as inciting terrorism. Indeed, this law will continue to erode democratic governance in the country, with some labeling it a “stealth declaration of martial law.”3 As US Congressional Representative Jan Schakowsky (D-IL) noted at the press conference she convened on July 15 to publicly call for the Anti-Terrorism Law’s repeal, “this law represents a new weapon in the administration’s campaign to suppress dissent and will worsen attacks on ordinary people.” 3. Jodesz Gavilan, “‘Stealth Declaration of Martial Law’: Rights Groups Slam Duterte, Anti-Terror Law,” Rappler, July 3, 2020, https://rappler.com/nation /human-rights-groups-statements-duterte-signing-anti-terror-law. Anna Romina Guevarra and Maya Arcilla 491 “A Timeline of Terror”: From “Pride is a Protest” and #JusticeForFabelPineda to #HandsOffGabriela4 A number of prominent feminists and queer rights activists have been targeted under President Duterte in the lead up to the passing of the ATL. On June 26, twenty LGBTQ activists representing Bahaghari, an LGBTQ+ rights organization in the Philippines, were arrested at a Pride rally. These protestors, referred to as the “Pride 20,” were speaking out against the ATL and were immediately arrested.5 A few days later, fifteen-year-old Fabel Pineda from San Juan Ilocos Sur was gunned... (shrink)

This paper provides a synopsis of the human rights enforcement in Bangladesh, which marks its 50 years in 2021 since its independence. After a theoretical background on how human rights are perceived as legal and political instruments, it critically discusses human rights provisions and explores the legal and institutional frameworks on human rights enforcement in Bangladesh—(re)construed in 50 years (1971–2021). Finally, it divulges the controversies in human rights enforcement and a roadmap to address them by making some suggestions: multiple legislative, (...) administrative, and judicial reforms are required to tackle human rights abuses to ensure punishment for the abusers and restitution for the victims. The paper concludes with the notion that the positive will of the relevant stakeholders (legislature, executive, and judiciary) is the key to upholding and protecting the human rights of Bangladeshi citizens. The significance of this paper lies in exploring the complexities associated with the laws and insular national politics, which often debars the enforcement of human rights and crucially compromises Bangladesh’s ability to empower its citizens. (shrink)

This new text will encourage students to develop a deeper understanding of the context and the current workings of the criminal justice system. Part One offers a clear, accessible and comprehensive review of the major philosophical aims and sociological theories of punishment, the history of justice and punishment, and the developing perspective of victimology. In Part Two, the focus is on the main areas of the contemporary criminal justice system including the police, the courts and judiciary, prisons, and community (...) penalties. The active engagement of students with the material covered distinguishes this text from others in the area and makes it a real teaching resource and invaluable text. (shrink)

Jeremy Bentham came to know Jacques-Pierre Brissot when he was in London between midwinter 1782–3 and summer 1784. They shared some opinions: Brissot indeed saw Bentham to some extent as his mentor. There was never complete accord, however; and Brissot's increasingly radical political views were not at that stage shared by Bentham. In any case, their ways parted with Bentham's prolonged sojourn with his brother in Russia between 1785 and 1788. It was revolution in France that brought renewed contact, though (...) no further personal encounters. By the winter of 1788–9 Bentham was writing, with France in mind, an increasingly elaborate work on parliamentary procedure; and by the spring Brissot was (much more expeditiously) writing and publishing his account of the subject. One element in that work dealt with an issue on which Bentham vigorously opposed Brissot; for it included a strongly argued case for a declaration of rights – something Bentham had already attacked in 1776. He renewed that attack in a letter to Brissot in the late summer of 1789. By the autumn, however, writing to Brissot again, he raised a subject on which the two could sympathise – the importance of asserting popular sovereignty in the new French constitution. That sovereignty, Bentham insisted, must extend to the administration of justice – royal authority must be rigourously excluded from control of the judiciary. The judicial establishment in France was to be Bentham's predominant concern between the winter of 1789–90 and the following summer, and he now had assistance, especially from Etienne Dumont, in translating and publicizing his work. Brissot was probably – though there is no direct evidence – aware of these efforts. In the autumn Bentham's principal concern was the promotion in France of his scheme for a model prison – the Panopticon. That cause was helped by the cordial reception in the National Assembly of his judicial reform proposals. By then he was again in touch with Brissot, whose support he now sought for the Panopticon project – at first with some success. No progress was made in 1793, however, as Brissot's revolutionary career reached first its apogee and then its disastrous end. Many years later, as Bentham's life drew to a close, Brissot's Mémoires served to remind him of their uneasy partnership in the years of revolution. (shrink)

The article explores court forms as an interactive genre essential for legal-lay communication in civil and family proceedings: court forms elicit key information from predominantly lay users for the purposes of court administration and the judiciary. The information presented in court forms defines the agenda and communicative focus of the subsequent hearings and settlement negotiations, and in some instances even the path the proceedings would take. It is thus important to consider court forms in terms of their comprehensibility as (...) well as functionality for eliciting legally coherent narratives and facilitating efficient engagement of lay participants with the proceedings. The case study presented in the article draws on the combination of corpus linguistics and discourse analysis to explore two versions of the court form most frequently used by self-represented parties in England and Wales, ‘Form C100: Apply for a court order to make arrangements for a child or resolve a dispute about their upbringing’. The comparison of the paper form and its redesigned online version identifies the improvements made as part of the digitisation process but also indicates communicative challenges which can prevent the lay person from presenting the relevant information. The discussion provides an opportunity to reflect on the role of language in online courts. (shrink)

The doctrine of double effect is a principle of crucial importance in law and medicine. In medicine, the principle is generally accepted to apply in cases where the treatment necessary to relieve pain and physical suffering runs the risk of hastening the patient’s death. More controversially, it has also been used as a justification for withdrawal of treatment from living individuals and physician-assisted suicide. In this paper, I will critique the findings of the controversial Victorian Civil and Administrative Tribunal (...) hearing Syme vs the Medical Board of Australia. In that hearing, Dr Rodney Syme, a urologist and euthanasia advocate, was defending his practice of prescribing barbiturates to terminally ill patients. Syme claimed that he prescribed the drugs with the intention of relieving their existential suffering and not to assist in suicide; he argued that the DDE could be applied. Pace VCAT, I argue that this is an illegitimate application of DDE. I argue that a close scrutiny of Syme’s actions reveals that, at the very least, he intended to give patients the option of suicide. He furthermore used what on a traditional definition of DDE would be considered a ‘bad’ means—the prescription of Nembutal—to achieve a ‘good’ end—the relief of suffering. The case demonstrates the crucial importance of analysing an agent’s ‘intention’ and the ‘effects’ of their actions when applying DDE. Ethicists and, indeed, the judiciary need to attend to the ethical complexities of DDE when they assess the applicability of DDE to end of life care. If they fail to do this, the doctrine risks losing its legitimacy as an ethical principle. (shrink)

The Belgian political system is of ten qualified as a particracy, this is a variation of the classical parliamentary democracy, in which political parties dominate the political decision-making process more than the other subsystems, such as parliament, the government, the public administration, the judiciary power, the broadcasting institutions, the written press etc. This preponderancy is achieved by the partypolitisation of the positions in and the functio ning of these subsystems.Partyleaders exert nowadays a major influence on the constellation of a (...) new government and the designation of its ministers. Through the governmental program and special extraparliamentary pacts they map out more and more government's future policies. The ministerial cabinets execute the control over the public administration on behalf of the parties of the majority and aften take over some of its peculiar functions. The recruitment of public servants and their promotion depend highly upon the institutionalized patronage of the governmental parties.The power to select the candidates for the general elections has shifted away from the rank-and-file member to the local and national partyleaders.Partydiscipline is one of the major causes of the shift of the government making function, the legislative and controlling functions of parliament to the party headquaters.The recruitment and the promotions of magistrates was already before World War II largely politicized.Although the structural integration between the newspapers and parties has decreased since 1945, the political parties have strengthened their control over the designation of the diree:tors and administrators of the Belgian broadcasting institutions. (shrink)

The transformative effects of alternative dispute resolution (ADR) practices and processes in Australia are wide spread and far reaching. The move away from adjudication affects legal institutions, legal practitioners and the judiciary. As lawyers play a key role in the administration of justice, the transition to ADR transforms many areas of legal practice. This article considers the rise of ADR in Australia in the non-criminal law context, the manner in which ADR changes the way in which law is practised, (...) and the associated ethical challenges confronting the legal profession. (shrink)

Both law and medicine rely on self-regulation and codes of professionalism to ensure duties are performed in a competent, ethical manner. Unlike physicians, however, judges are lawyers themselves, so judicial oversight is also self-regulation. As previous literature has highlighted, the hesitation to report a cognitively-compromised judge has resulted in an “opensecret” amongst lawyers who face numerous conflicts of interest.Through a case study involving a senior judge with severe cognitive impairment, this article considers the unique ethical dilemmas that cognitive specialists may (...) encounter when navigating duties to patient, society, and the medical profession, without clear legal guidance.Systemic self-regulatory inadequacies in the legal profession are addressed, as well as challenges that arise when trying to preserve the trust and dignity of an incapacitated patient who must fulfill special duties to society.Ultimately, because of their unique neurological expertise and impartial assessments, we submit that allowing cognitive specialists to submit their assessments to an internal judiciary board may act as an additional check and balance to ensure the fair and competent administration of justice. (shrink)

This paper deals with the nature and direction of constitutional thinking and practice in Pakistan. It is argued that the country reflects a general malaise of postcolonial societies, characterized by tension between the locus of power in the politico-administrative machinery and the source of legitimacy in the constitution. Under the classical formulation, the constitution represents the way a nation wants to live its collective life in terms of various laws and institutions, as well as the powers and duties of (...) public office-holders. In other words, the institutional-constitutional edifice of the state functions as the vehicle of a nation's life’. One finds comparable theories in the tradition of structural Marxism, for example in Poulantzas, which consider the state as a condensate of the power structure of the society. It is argued that there is a conceptual tension in the formulation of such theories. In the context of postcolonial societies, transplantation of institutions and constitutions from a different era and a different continent played a formative, almost deterministic, role in the way the state's authority was conceived and opera-tionalized. For more than a hundred years, British India remained a laboratory for the implementation of political, economic, legal and administrative values and norms. On the one hand, this shaped the way people came to look at their relations with the state in terms of new implements of power such as non-arbitrary sources of authority, codified law, rational-legal bureaucracy and rule of public representatives. On the other hand, it created the mass public itself which, in due time, rose to stake a claim for societal input into the business of the state. In other words, our discussion needs to go beyond the ahistorical approach to constitutionalism in Pakistan and elsewhere, as embedded in such concepts as the reflection of either the nation's will or the social power structure in a microcosm. The relative autonomy of the state apparatuses of the military, the bureaucracy and the judiciary, as well as constitutional provisions ranging from writ jurisdiction, equality before the law and equality. (shrink)

The article analyses Egyptian jurisprudence on the issue of apostasy, with a focus on conversion from Islam to Christianity. It argues that the Egyptian judiciary has failed to develop a harmonious relationship between Islamic law and the principle of freedom of religion. It looks at how the majority of cases examined before the Egyptian judiciary reveal a continued tension between freedom of religion as defined in international human rights law and its judges’ interpretation of Islamic law as a (...) constitutive element of public order. Recently, the Supreme Administrative Court tried to break through traditional barriers regarding the right of converts of Christian origin to record their re-affiliation to Christianity in their documents of identification, and pragmatically justified this precedent in light of the requirements of modern states, whereby identity cards should reflect the correct information of each citizen. Yet it argues that the court was not conscious of freedom of religion as a fundamental individual right, and moreover, that this precedent has not been followed with respect to converts of Islamic origin. Finally, the paper argues that, for a sustainable solution to the legal tensions concerning apostasy in Egyptian courts, a new perspective is required on the relationship between Islamic law and religious freedom whereby the universal understanding of freedom of religion can be legitimized from within Islamic legal traditions. The article also proposes a set of constitutional and legal measures to enhance freedom of religion in Egypt. (shrink)

In the article explored the period of the Sunni concept of state and government that allows us to understand the processes that shaped the modern concept of Islamic political structure of society. The genesis of the concept of a Sunni state and government includes period from the Early Islamic state till final design developed by medieval Muslim religious leaders and lawyers of the principles and norms. It is shown that this period of political organization Ummah begins from the first days (...) of Islam, because Islamic state appears mainly to protect the newly established religious doctrine. Sunni concept of government particularly emphasizes the non-absolute power of the Caliph. He doesn`t enjoy any privilege or immunity and he is also equal before the law like a simple Muslim. He is only a temporary leader of the Ummah. The peculiarity of this author believes state legislative functions in the absence of power - it can be administrative, executive and judiciary and aims observance and fulfillment of the divine laws. Contradictions between the executive and legislative authorities can`t be, because they are actually executing divine laws. That`s why author believes that concept of Sunni state and government this is first of all theoretical construct of nation-building than historical reality. (shrink)

The word Anthropocene, referring to a new era of humanity’s uncontrolled exercise of power over the Earth as a geophysical unit, could be translated using a cognitive metaphor as “the Age of Loss”. We have gained such power that we are unable to adjust or even fully track its manifestations. The relation between loss and power is continuous in all the basic areas of materialization of socio-political concepts: in politics, in economics, in law and the judiciary, in legislation, environmental (...) protection, etc. The philosophy of loss and power is inseparable from economic concerns. The entirety of Western civilization is built on the economic calculus of profit and loss, whose results are directly transformed into decisions of power made by the administrative, political, ownership and power-broking elites. The environmental and climate crisis is therefore also a crisis of privilege of one group over others. The question for politics is which political means can one use to achieve a state of uncorrupted voluntary depriviligization. This level of prosperity will itself be the subject of environmental self-limitation, being presented as “loss”. It will be posed as a political problem with the intention of depoliticizing the subject and inequality of civilizations; precisely in accordance with the posed political problem of democracy, which has already uncovered the basic connection: liberalism won’t make a poor country rich. (shrink)

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights (health, education, work and housing – all of them guided by the idea of human dignity). If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be juridical or factual. Juridical liberty has no (...) value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. In fact, they are subjective rights, but special ones: they are prima facie subjective rights, so that their rules present exceeding content and the determination of the definitive right is only possible in the concrete case. There is only one subjective right that is a priori considered definitive: the right to Existenzminimum. Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. So Existenzminimum represents what is essential to assure human dignity. It is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, besides the arguments referred above, the following ones have also arisen: (a) Juridification of politics; (b) Legal permission of administrative discretion; (c) Possible reserve clause. These are the counter-arguments: (a) Legislative and Executive Powers have the original competence, but Judiciary has the exceptional one; (b) It is not enough to state economical incapability of the State. It is necessary to prove it objectively; (c) Powers have discretion, but State’s will is not allowed; (d) Public administration is under the principles of legality and of non-obviation of Judiciary jurisdiction; (e) The Existenzminimun guarantee is untouchable, prevailing over any opposite allegation. (shrink)

In recent years, the judicial systems of African countries have been increasingly ineffective, as demonstrated in cases as varied as the genocide in Rwanda and the land seizures in Zimbabwe. It is not only in cases involving individual rights and the state that the legal system is barely existent. The situation is just as bad, if not worse, in the administration of criminal justice. Whether it is the police, the prisons, or the courts, under both military and democratic governments, we (...) are confronted with evidence of the impotence of the judiciary. This article examines the relationship between the executive and judicial branches of government in Nigeria. It also makes recommendations to improve the responsiveness and effectiveness of African judiciaries in checking executive power. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Around the world, many liberal democracies are facing in recent years serious challenges and threats emanating inter alia from the rise of political populism. Such challenges and threats are feeding an almost existential discourse about the crisis of democracy, and recent legal and political developments in Israel aimed at weakening the power of the Supreme Court and other rule of law institutions have also been described in such terms. This Article primarily intends to explore the relevance of the discourse surrounding (...) the decline of liberal democracy, and its possible relevance for Israeli democracy, by examining the principal similarities and differences between specific legislative and administrative measures recently taken or contemplated in Israel and in two Central European states: Poland and Hungary. We focus on three sets of illiberal measures adopted or contemplated in Hungary, Poland, and Israel: (i) measures directed at limiting the power of the judiciary; (ii) measures intended to restrict the operation of civil society organizations; and (iii) measures directed at curbing dissent to governmental policies and at influencing the discourse in the media and academia. Although Israeli democratic institutions still retain much of their independence and vitality, we nonetheless find some degree of similarity between measures taken or contemplated by Hungary, Poland, and Israel, despite the many differences between their legal systems, historical contexts, political cultures, and the distinct stages of backsliding they seem to experience. (shrink)

The process of the liquidation of the Hetmanate lasted for decades because of its scale and the constant need of Russia in the Cossack Army. Empress Elizabeth’s regime continued the centralizing policies introduced by Tsar Peter I. In anticipation of the possible consequences of this centralization, in the early 1860s Hetman Kyrylo Rozumovskyi tried to strengthen local governance by reforming his administrative system and judiciary, outlining the justification of his measures in an appeal to Empress Catherine II, entitled (...) “Petition of the Little Russian Nobility and Officers, Together with the Hetman Concerning the Restoration of Various Old Rights of Little Russia.” At the same time, Catherine II’s State Secretary, Grigorii Teplov expressed opposite views to the positions expounded in the “Petition,” in his so-called “Notes on Violations in Little Russia.” The main theses of Teplov’s memorandum were used by the Empress in secret guidelines issued to Petr Rumiantsev in his position as the President of the Second Little Russian Collegium. The reasoning of the above-mentioned documents formed the basis for Rumiantsev for the liquidation of the Ukrainian state. (shrink)

Women’s legal rights are one of the most significant determinants of their status. In Bangladesh, a series of laws ensuring women’s rights have proven largely ineffective in promoting their positions. The prime reasons for this are: dirtier politics, the ineffective implementation of women rights laws, the traditional and cultural negative views about women’s rights, the absence of an accountable and transparent government, the expensive and time consuming judicial process, the lack of an efficient judiciary, and other socio-economic reasons. The (...) core theme of this essay concentrates on the ineffective enforcement of laws with the objective to promote protection of women’s rights by recommending remedies to flaws in prevailing laws in Bangladesh. Recommendations are made by reference to comparative and international practices. The primary arguments developed throughout this essay are: the protection of women’s rights is imperative to improve their status the legislative, administrative and judicial efforts dealing with women’s rights; and improvements in those effortsto better protect women’s rights. This study examines laws regarding women’s employment and political participation and the laws on dowry. It also explores the ways laws have been structured and enforced in Bangladesh, and how law can be an effective means of women’s pursuit of rights. (shrink)

In spite of his post-World War II works on international law, which seems more purely juridical, Hans Kelsen continues to put forward in his vast body of work an implicit – and sometimes even explicit – juridical objectivism and pacifism. Especially before and during the second World War he makes – by means of many moral-political writings – an effort for a more effective assurance of international peace. The fact that Kelsen regards the law as the pre-eminent means to achieve (...) the end of peace, is – in view of the tradition running from Hobbes to Kant – still not very innovating. But the primary and central role he assigns to the judiciary in order to guarantee international peace is on the other hand really original. To bring out Kelsen’s juridical objectivism and pacifism, I restrict myself in this article to his plea before and during the second World War for the judicial primacy in the international legal order. In that plea, which is spread over many writings and founded by several arguments, I distinguish however three main convincing arguments – namely an evolutionary, a technical and a moral-political argument – for the establishment of an international court with compulsory jurisdiction as the ‘guardian of international peace’. The fact that Kelsen’s original plea is still relevant to our times, is already evident from the post-World War II UN-system of peace-enforcement, which still functions little satisfactorily and of which the existing plans of reform go no further than strengthening the position of the Security Council, the current hardly effective ‘maintainer of world peace’. (shrink)

In the article, the problem of the impact of Islamic factor on the events of the civil war in Kabarda and Balkaria is studied. During the civil war Islam has become a factor that unites Muslim population of Kabarda and Balkaria in the fight against the infidels. The author considers the religious policy of the Reds and Whites in the region, as well as, the role of Islam in the judicial and administrative practice and the political district of life. (...) In the district, where the majority of the population is Muslim, the clergy’s influence was enormous. Each of the warring sides used the Muslim dogma to gain support of the local population and strengthen their political power in the province. During this period, bright spiritual and political leaders stood out of the local population. With the support of the population, local leaders have created a military-political union Shariat. The author points out the positive role of religious advisory body unprecedented in the history of Kabarda and Balkaria - the Spiritual Council of Tausultan Shakmanov’s administration - in reconciling the warring parties. Support of the local clergy and the Muslim population, which grew into the Red Army, has greatly contributed to the victory of the Bolsheviks in the civil war in the neighborhood. After the victory of the Bolsheviks in the war and the establishment of Soviet power in Kabarda and Balkaria, most priests were physically eliminated, Shariat was proclaimed illegal, the Muslim education system was destroyed, and many mosques were closed. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the judicial process in the traditional sense, (...) and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

A simple, direct, fast point of view regarding my perception of Administration Philosophy, Teaching Philosophy, Research Philosophy, and What I Can Bring to This Institution.

The study aimed to identify the role of administrative procedures and systems in enhancing the performance of the educational institutions in the Islamic University in Gaza. To achieve the research objectives, the researchers used the analytical descriptive approach to collect information. The researchers used the questionnaire distributed to three categories of employees at the Islamic University (senior management, faculty members, their assistants and members of the administrative board). A random sample of 314 employees was selected and 276 questionnaires (...) were retrieved with a recovery rate of 88.1%. The Statistical Analysis Program (SPSS) was used to enter process and analyze data. The results of the research showed a positive role for the administrative procedures and systems in enhancing the performance of the Islamic University from the point of view of the members (senior management, teaching staff and their assistants and the administrative body), where the relative weight of all the paragraphs (73.728%). The analysis of the results revealed that the administrative procedures at the Islamic University in Gaza are used to an acceptable degree. The relative weight of all the paragraphs is 70%. This indicates a relationship between administrative procedures and regulations and the performance of the Islamic University in the Gaza Strip. The study found that there was a good degree of approval from the sample regarding the administrative procedures and their relationship to the job performance. There exist a sufficient degree of powers to the deans and department managers to carry out their tasks, with the use of plans as control tools. And that there are rules and procedures provided for decision-making in the University Council. It also has full powers to manage the university to improve the teaching and learning environment. The researchers also recommended a number of recommendations, including the need to follow up on the procedures and systems of management and update them continuously in the light of changes that may occur and to ensure the existence of a strong system of electronic information systems within the university. There is a need to provide mechanisms for obtaining information about the surrounding external environment, and effective mechanisms to provide managers with the necessary information in a timely manner. The importance of providing channels of communication that enables staff to communicate information about any violations and breaches. The study also recommended the follow-up, review, procedures and administrative systems, and work to modify them in line with the mission of the university and the objectives that the university seeks to reach. (shrink)