Israeli Administrative Law at the Crossroads: Between the English Model and the American Model

2007 ◽  
Vol 40 (1) ◽  
pp. 56-71 ◽  
Author(s):  
Daphne Barak-Erez
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Central Government ◽  
Radical Change ◽  
Executive Branch ◽  
Administrative Law ◽  
Basic Law ◽  
Two Factors ◽  
Protection Of Human Rights ◽  
The One

Administrative law in Israel is at the crossroads. Historically, Israeli administrative law was born from English administrative law and like its English counterpart was developed against the background of two significant factors: the relative dearth of constitutional law concerning the protection of human rights on the one hand, and the power of the central government on the other. These two factors had traditionally contributed to the centrality of administrative law that underwent a radical change. First, constitutional law is now an independent source for the recognition and enforcement of human rights following the enactment of new basic laws on human rights—Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Second, privatization has changed completely the scope and pattern of activities conducted by administrative agencies in both countries.This Article discusses the developments in Israeli administrative law as a result of these changes. In this context, it also evaluates the potential recourse to American administrative law, which has grown in the context of a well developed constitutional law and a relatively low level of government activity in the economic sphere.The Article argues that the main focus of administrative law—in contrast to constitutional law—should be on the protection of interests (that are not considered human rights), on distributive justice, on procedural justice (in the context of bureaucratic decision-making) and on a broader scope of review (not limited to the protection of human rights), with a special emphasis on the executive branch. In the context of adapting to privatization, it also argues that administrative law should strengthen its focus on the challenge of regulation, on the protection of social rights and on the duties of “mixed” bodies, which are, in many cases, the product of privatization.

scholarly journals RELEVANSI HUKUM DAN HAK ASASI MANUSIA DENGAN AGENDA REFORMASI: DIMENSI NASIONAL DAN INTERNASIONAL

2020 ◽  
Vol 5 (2) ◽  
pp. 350
Author(s):  
Ismail Marzuki ◽  
Faridy Faridy
Keyword(s):  
Human Rights ◽  
Social Interactions ◽  
Social Order ◽  
Reform Agenda ◽  
Legal Rules ◽  
Recognition Respect ◽  
Protection Of Human Rights ◽  
The Law ◽  
The Difference ◽  
The One

In life, humans certainly cannot be separated from their social interactions with others. Friction between individuals or between nations is something that is inevitable. That is because the understanding of the legal system and culture of a different society. The difference in opinion certainly needs to be harmonized by not locking up the meeting room of everyone's expression. From here, the existence of legal rules/norms on the one hand becomes important in people's lives. On the other hand, the recognition, respect and protection of human rights are also important to be accommodated. Therefore, this article examines the law as a means of maintaining social order, and human rights as a set of rights that describe the existence of human freedom in expressing their actions, and how relevant they are to the reform agenda, namely enforcing the law against violators of human rights seriously, both in national and international.

The emergence and transformation of self-determination claims in Hong Kong and Catalonia: A historical institutionalist perspective

Ethnicities ◽  
2018 ◽  
Vol 20 (1) ◽  
pp. 3-23 ◽  
Author(s):  
André Lecours ◽  
Jean-François Dupré
Keyword(s):  
Hong Kong ◽  
Central Government ◽  
Early Years ◽  
Self Determination ◽  
Constitutional Court ◽  
Regional Autonomy ◽  
Basic Law ◽  
One Country Two Systems ◽  
1997 Handover ◽  
The One

Using a historical institutionalist framework emphasizing the importance of transformative events, this paper seeks to explain the sudden emergence of self-determination claims in Hong Kong and their transformation into separatist ones in Catalonia. The paper argues that the inflexibility of the state in addressing moderate demands for regional autonomy has played a major role in the emergence and radicalization of these demands. In Hong Kong, the 1997 Handover from British to Chinese sovereignty was originally presented as an opportunity for self-governance under the principle of “Hong Kong People ruling Hong Kong” and the “One Country, Two Systems” formula. If Hong Kong nationalism was practically unheard of in the early years of the Handover, the unconciliatory attitude of the central government towards moderate demands for the actualization of the autonomy and democratization frameworks vested in Hong Kong’s Basic Law has directly contributed to the formation of today’s emerging self-determination movement. In Catalonia, the 2010 decision of the Spanish Constitutional Court to annul some articles of the reform to the Statute of Autonomy of Catalonia and to interpret others narrowly represented a transformative event that took Catalonia onto the pathway of secessionist politics. The secessionist turn was then further fed by the on-going refusal of the central government to negotiate with the Catalan government, notably on the notion of a popular consultation on the political future of the Autonomous Community.

Bills of Rights and Decolonization

2007 ◽  
Author(s):  
Parkinson Charles
Keyword(s):  
Human Rights ◽  
Radical Change ◽  
Legal Culture ◽  
The Political ◽  
South East Asia ◽  
Late 20Th Century ◽  
Alternative Perspective ◽  
Protection Of Human Rights ◽  
Political Dimensions ◽  
Overseas Territories

This book analyzes the British Government's radical change in policy during the late 1950s on the use of bills of rights in colonial territories nearing independence. More broadly it explores the political dimensions of securing the protection of human rights at independence and the peaceful transfer of power through constitutional means. This book fills a major gap in the literature on British and Commonwealth law, history, and politics by documenting how bills of rights became commonplace in Britain' s former overseas territories. It provides a detailed empirical account of the origins of the bills of rights in Britain's former colonial territories in Africa, the West Indies, and South East Asia as well as in the Atlantic and Pacific Oceans. It sheds light on the development of legal systems at the point of gaining independence and raises questions about the colonial influence on the British legal establishment's change in attitude towards bills of rights in the late 20th century. It presents an alternative perspective on the end of Empire by focusing upon one aspect of constitutional decolonization and the importance of the local legal culture in determining each dependency's constitutional settlement and provides a series of empirical case studies on the incorporation of human rights instruments into domestic constitutions when negotiated between a state and its dependencies. More generally, this book highlights Britain's human rights legacy to its former Empire, and traces the genesis of the bills of rights of over thirty nations from the Commonwealth.

Global norms, domestic institutions and the transformation of immigration policy in Canada and the US

2010 ◽  
Vol 36 (1) ◽  
pp. 169-193 ◽  
Author(s):  
TRIADAFILOS TRIADAFILOPOULOS
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
Immigration Policy ◽  
Executive Branch ◽  
Immigration Policies ◽  
World War ◽  
Policy Regimes ◽  
The Us ◽  
The One ◽  
High Degree

AbstractThis article examines the liberalisation of immigration policy in Canada and the US in the post-World War II era. I argue that shifting norms pertaining to race, ethnicity, and human rights cast longstanding discriminatory policies in Canada and the US in a highly critical light. Opponents of racially discriminatory immigration policies exploited this shift in normative contexts to highlight the disjuncture between Canada and the US’ postwar commitments to liberal norms and human rights, on the one hand, and their extant policy regimes, on the other. The resulting pressure set in motion comparable processes of policy stretching and unravelling, which culminated in policy shifting in the mid-1960s. Policy shifting was, however, subject to very different political dynamics. Whereas Canada's institutional configuration granted the executive branch and bureaucracy a high degree of autonomy that enabled experimentation, the greater openness of the American political system led to a more politicised process, marked by compromises and deal-making. Thus while changing norms prompted the liberalisation of immigration policies in both countries, differences in their domestic political contexts resulted in very different admissions regimes.

scholarly journals An Ambiguity of Constitutional Law Major at the Faculty of Sharia of Islamic Higher Education Institutions in Indonesia

MAZAHIB ◽  
2019 ◽  
Vol 18 (2) ◽  
Author(s):  
Zainuddin Zainuddin ◽  
Yustiloviani Yustiloviani ◽  
Afrian Raus ◽  
Mauliddin Mauliddin
Keyword(s):  
Higher Education ◽  
Constitutional Law ◽  
Higher Education Institutions ◽  
Legal Studies ◽  
Library Research ◽  
Basic Law ◽  
Law Faculty ◽  
Core Subjects ◽  
Materials Research ◽  
The One

This article examines the problem of majoring Constitutional Law at the Faculty of Sharia in Islamic Higher Education Institutions in Indonesia. There is an ambiguity of the essence of Constitutional Law at the Faculty of Sharia whose Siyasah (simply translated into Constitutional Law) as a major. The core subjects of constitutional law are legal studies on basic law aka constitution. Meanwhile, the essence of siyasah is politics. Does this ambiguity occur only in the nomenclature or also in its implementation as well that include the department’s vision, mission, curriculum, competency, and profile of graduates? This study was a library research which employs a qualitative data analysis towards the so-called siyasa department’s vision and mission documents, curriculum documents, textbooks assigned, teaching materials, research journals, and websites across Islamic Higher Education Institutions in Indonesia. It found that there has been an ambiguity in some Departments of Constitutional Law at the Faculty of Sharia both in the Department nomenclature and in its implementation, such as vision, curriculum, student final assignments, student competency, and profile of graduates. This ambiguity lies in which specialization aims at by the major: law in general, politics, or constitution? On the one hand, the objective of the department is to train the students with legal studies focusing on Islamic Constitutional Law (Qanun Dusturi al-Islamy). On the other hand, the courses on politics are prominent too while there is not enough subjects on the Islamic Constitutional Law. It thus suggests the siyasa Department management across the Faculty of Sharia in Indonesia reorient their vision and mission and match them with their curriculum and programs.Keywords: Ambiguity, constitutional law, Faculty of Sharia

scholarly journals TAKING POLICY SERIOUSLY: WHAT SHOULD INDONESIAN GOVERNMENT DO TO STRENGTHEN ACEH TRUTH AND RECONCILIATION COMMISSION?

2020 ◽  
Vol 5 (1) ◽  
pp. 14-32
Author(s):  
Herlambang P Wiratraman ◽  
Sri Lestari Wahyuningroem ◽  
Manunggal K. Wardaya ◽  
Dian P. Simatupang
Keyword(s):  
Human Rights ◽  
Central Government ◽  
Group Discussion ◽  
Research Process ◽  
Truth And Reconciliation Commission ◽  
Reconciliation Commission ◽  
State Institutions ◽  
Truth And Reconciliation ◽  
Protection Of Human Rights ◽  
Legal Position

This article discusses three key questions, namely, first, what and how is the development of policies and legal umbrella that can support the Central Government in the implementation of the Aceh TRC? Second, how can the institutional institution of the Aceh TRC and the Human Rights Court as a mechanism of justice strengthen mutual protection of human rights for victims and their families? Third, how to build strong legal relations between state institutions to strengthen the TRC's recommendations regarding reparations? Produced from a research process and focus group discussion, this article encourages a number of legal policy developments that are oriented as a solution to the limited efforts to protect and fulfill victims, especially in relation to reparations and restoration of their rights. Also, emphasizing the legal position of the basic national legal political context is re-associated as a reminder of the marwah of the Helsinki MOU for the future of Aceh. Abstrak: Artikel ini mendiskusikan tiga pertanyaan kunci, yakni pertama, apa dan bagaimana pengembangan kebijakan dan payung hukum yang dapat menjadi dukungan Pemerintah Pusat terhadap pemberlakuan KKR Aceh? Kedua, bagaimana secara institusional kelembagaan KKR Aceh dan Pengadilan HAM sebagai mekanisme keadilan dapat saling memperkuat perlindungan HAM bagi korban dan keluarganya? Ketiga, bagaimana membangun relasi hukum yang kuat antar Lembaga negara untuk memperkuat rekomendasi KKR terkait reparasi? Dihasilkan dari proses riset dan diskusi grup terarah, artikel ini mendorong sejumlah pengembangan kebijakan hukum yang diorientasikan sebagai jalan keluar atas terbatasnya upaya perlindungan dan pemenuhan bagi korban, terutama terkait reparasi dan pemulihan hak-haknya. Serta, menegaskan posisi hukum atas konteks politik hukum nasional yang mendasar dikaitkan kembali sebagai pengingat marwah MOU Helsinki bagi masa depan Aceh. Kata Kunci: Komisi Kebenaran dan Rekonsiliasi, Hukum Hak Asasi Manusia, Kebijakan Pemerintah Indonesia, Pemerintah Aceh

scholarly journals PARADIGMS OF CONSTITUTIONAL REFORM

2015 ◽  
Vol 1 (5) ◽  
pp. 0-0
Author(s):  
Талия Хабриева ◽  
Taliya Khabriyeva
Keyword(s):  
Public Relations ◽  
Constitutional Law ◽  
Constitutional Reform ◽  
Political Systems ◽  
Basic Law ◽  
The Status ◽  
Detailed List ◽  
Fundamental Law ◽  
The One ◽  
Definition Of

The article deals with the theoretical aspects relating to reforms in the fundamental law of a State — Constitution. It is noted that the Constitution is a developing legal substance which is shaped by and dependent on the existing economic, political, social and even ideological situation; conservation of the basic law can cause both public tension, and also hamper the evolution of statehood. The author attends to the correlation of notions of “constitutional reform” and “change of the constitution”. Also analyzed are the approaches towards the definition of the term of constitutional reform which have been elaborated by the doctrine. It contains a detailed list of terminology which is used in the science of constitutional law and has a direct relevance to reformation of the constitution. Emphasis is made on the new trend in research in the science of constitutional law which reflects the two-sided approach — on the one hand, a factor of progress, and on the other hand, — may be viewed as a tool necessary to make public relations stable and dynamic. The article contains a list of model provisions for the present day constitution which potentially can be employed. It relates to the provisions of the constitution relating to the status of a person, also, economic, social and political systems, etc. Comparative law approach is applied to the contents of constitutional reforms of the XX and XXI centuries in various countries. It notes that a stable basic law of a country is a key symbol of a legal identity of a nation.

scholarly journals The constitution as a (non) fundamental law for the authorities and society (on the specifics of Ukraine's newest constitutional process)

2019 ◽  
Vol 12 (2) ◽  
pp. 84-92
Author(s):  
Mykola Tomenko
Keyword(s):  
Indigenous Peoples ◽  
Public Debt ◽  
Radical Change ◽  
Optimal Model ◽  
Scientific Discussion ◽  
Social Legitimacy ◽  
Basic Law ◽  
Fundamental Law ◽  
The One ◽  
Full Adaptation

Despite the fact that the Ukrainian state since of June 28, 1996 has been living by its own Constitution, there is still a scientific discussion about optimal model of the Basic Law of Ukraine. In particular, one of the key problems is that specialists, scholars and constitutionalists are not involved in the process of discussing amendments to the Constitution and the creation of laws that would comply with the Constitution of Ukraine. It should also be noted that the Basic Law was usually changed not in the process of legislative evolution, but after the election of a new president. That can be attributed to the fact that the legal society has not formed from the very beginning due to respect for the Constitution and the need for full adaptation of legislation to it. Thus, to date, there are no constitutional laws, which are directly referred to in the Basic Law of the country. So far, there are no laws, "On the All-Ukrainian Referendum", "On the Local Referendum", "On the Imperative Mandate", "On the Procedure for Forming and Repaying Public Debt" and laws regulating the activities of the parliamentary coalition and opposition. The approval at the level of the Constitution also requires the Great State Emblem of Ukraine. It is also necessary to amend the Constitution, which will clearly regulate the procedure for entry into force of decisions adopted in all-Ukrainian and local referendums. The article states that in the process of Constitutional reform the Basic Law needs certain terminological clarifications, such as "indigenous peoples". The purpose of the article is to determinate at least three directions of the modern constitutional debate – conservative, evolutionary and revolutionary ways. It is proved that the revolutionary initiatives of the authorities in the matter of radical change of the Con\stitution have no professional justification and social legitimacy. Conservative and evolutionary approaches have been proposed and taken as their basis, which presupose, on the one hand, the importance of promoting respect for the Constitution and the need for its implementation, and, on the other, a professional and socially sensitive approach to amendments to the Constitution.

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

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