Transnational Legal Process and Fundamental Rights in Latin America: How Does the Inter-American Human Rights System Reshape Domestic Constitutional Rights?

2016 ◽  
pp. 21-38 ◽  
Author(s):  
Marcelo Torelly
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Legal Process ◽  
Transnational Legal Process

scholarly journals The Citizens’ Constitutional Rights Regarding Habitable and Wholesome Environment: Towards a Law State that Protects the Environment

2020 ◽  
Vol 4 (1) ◽  
pp. 81
Author(s):  
Nyoman Satyayudha Dananjaya ◽  
Fuchikawa Kazuhiko
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Due Process ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Human Beings ◽  
Legal Research ◽  
International Human Rights ◽  
The Rule Of Law ◽  
Protection Of Human Rights

This paper aims to examine the protection of the environment in Indonesia which is part of the realization of a law state that guarantees the constitutional rights of its citizens. It is a legal research that reviews Indonesian constitutional and statutory provisions, besides adding a comparative perspective from a Japanese Constitution and legal system. It is found that the concept of a law state in Indonesia does not specifically follow the concept of a law state like what is meant in “rechtsstaat” or “the rule of law”. It has peculiar characteristics which indeed seem to adopt the noble values ??of those two concepts which clearly confesses in the constitution along with the elements and characters stated in it. One of the most prominent characteristics of a law state is the recognition and protection of human rights. In the Indonesian Constitution 1945, human rights as the fundamental rights of human beings have been arranged and compiled which is legally legitimized become constitutional rights. Among human rights, rights related to the environment include essential rights in array of international human rights formulations. Article 28 letter H of the Indonesian Constitution 1945 expressly states the rights to habitable and wholesome environment for citizen. The protection form can be a normative arrangement in the constitution or in a formal juridical through legislation. Protection of citizens' constitutional rights related to the environment is faced with due process of environmental protection that requires consistency in order to achieve the intention and direction of the Indonesian law state itself.

Cultural Rights and the Margin of Appreciation Doctrine: A Legal Tool for Balancing Individual Rights and Traditional Rules

2017 ◽  
Vol 13 (3) ◽  
pp. 446-468
Author(s):  
Fabio Macioce
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Individual Rights ◽  
Group Rights ◽  
Cultural Rights ◽  
European Court ◽  
Margin Of Appreciation ◽  
Subsidiarity Principle ◽  
Legal Mechanism

The aim of this article is to suggest a way forward for conflicts between individual rights and group rights, and between policies of equality and policies of difference. I propose a strategy to deal with problems of recognition, by establishing a legal mechanism in which powers and responsibilities are shared by the group and the state. This strategy does recognize the importance of the subsidiarity principle, and it is based on the European Court of Human Rights (ECtHR)’s margin of appreciation doctrine. This approach aims to combine respect for fundamental rights with the defense of a group’s identity, by allowing group representatives a wider margin of interpretation in constitutional rights enforcement. At the same time, I argue that this perspective may be a judicial mechanism to encourage groups to gradually develop their traditions, and to update them to constitutional standards.

scholarly journals Referencing International Human Rights Law In Indonesian Constitutional Adjudication

2018 ◽  
Vol 4 (2) ◽  
pp. 249
Author(s):  
Bisariyadi Bisariyadi
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
The Status ◽  
International Human ◽  
Constitutional Adjudication

The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.

Canada's Legal Revolution: Judging in the Age of the Charter of Rights

1994 ◽  
Vol 28 (4) ◽  
pp. 579-588
Author(s):  
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Basic Information ◽  
Legal Process ◽  
Canadian Charter ◽  
The Subject ◽  
Fundamental Law ◽  
Fundamental Rights And Freedoms ◽  
The Relationship

I have been asked to speak to you about judging in the age of the Canadian Charter of Rights and Freedoms, with particular reference to remedies under the Charter. You will understand, I am sure, that my treatment of the subject will necessarily be in the nature of an overview.Stated broadly, I will be suggesting to you that the introduction of the Charter in Canada has required a fundamental reappraisal of how judges approach their tasks, of the processes that are employed and of the relationship between the judicial and legislative branches of government.Before developing these two propositions, however, I should first give you some basic information about our Charter; to those for whom this is very familiar ground, I apologize and promise brevity.The Canadian Charter of Rights and Freedoms, which was adopted by Canada in 1982, has one main animating principle from which flows one corollary. The animating principle is that certain human rights and freedoms should be part of the fundamental law of the land. The corollary is that when there is a dispute about the application or the meaning of these fundamental rights and freedoms, it is the responsibility of the courts in Canada to define and apply them through the legal process.

Introduction: Trumping International Law?

2018 ◽  
Author(s):  
Harold Hongju Koh
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Global Governance ◽  
Islamic State ◽  
World War ◽  
Legal Process ◽  
Spheres Of Influence ◽  
Transnational Legal Process

How to resist President Donald Trump’s assault on international law? This introduction sketches the tripartite plan of this book. First, it discusses a counterstrategy of resistance based on transnational legal process. Second, it illustrates that counterstrategy with respect to immigration and refugees, and human rights; the Paris Climate Change Agreement, the Iran Nuclear Deal, and trade diplomacy; with countries of concern such as North Korea, Russia, and Ukraine; and with respect to America’s wars: Al Qaeda, Islamic State, Afghanistan, and Syria. Third, it reviews what broader issues are at stake in the looming battle between maintaining the post-World War II framework of Kantian global governance versus shifting to an Orwellian system of authoritarian spheres of influence.

Constitutional Rights and Finnish Criminal Law and Criminal Procedure

1999 ◽  
Vol 33 (3) ◽  
pp. 592-606
Author(s):  
Raimo Lahti
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Rights ◽  
Political Rights ◽  
Remarkable Change ◽  
Human Rights Treaties ◽  
Fundamental Rights And Freedoms

The constitutional aspects of criminal law and criminal procedure only began to receive serious attention in Finland in the 1990s. The remarkable change in legal thinking and practice in this respect was connected to two major legislative reforms: firstly, Finland ratified the European Convention on Human Rights and Fundamental Freedoms (ECHR) in 1990 and, secondly, new provisions on fundamental (basic) rights were incorporated in the Finnish Constitution in 1995. A fully revised new Constitution of Finland was enacted in 1999 (to be entered into force on 1 March 2000), but the substance of fundamental rights and freedoms was confirmed already in the constitutional reform of 1995.Those aspects had not, however, been completely overlooked before. Most of the relevant human rights treaties were eventually ratified in Finland (e.g., the International Covenant on Civil and Political Rights, CCPR) and, when ratified, they were incorporated into the domestic legal order. Nevertheless, courts or administrative authorities very seldom referred to human rights treaties or constitutional rights before the late 1980s; a tradition of invoking constitutional rights in the courts was lacking. Instead, human rights treaties and constitutional rights were primarily regarded as binding the legislator.

scholarly journals GARANTISMO, SISTEMA ACUSATÓRIO E A PRODUÇÃO DE PROVA EX OFFICIO PELO MAGISTRADO

2020 ◽  
Vol 2 (59) ◽  
pp. 210
Author(s):  
Teodoro Silva SANTOS ◽  
Nestor Eduardo Araruna SANTIAGO
Keyword(s):  
At Risk ◽  
Human Rights ◽  
Criminal Procedure ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Legal Process ◽  
Accurate Analysis ◽  
Criminal Process ◽  
Procedure Code ◽  
European Court

RESUMO Objetivo: A análise da possibilidade de produção de provas ex officio pelo magistrado, prevista na redação do inciso I do art. 156 do Código de Processo Penal, advinda da reforma implementada pela Lei nº. 11.690/2008, que alterou os dispositivos relativos à prova no Processo Penal à luz da Constituição e do Garantismo Penal. Metodologia: Métodos analítico e dedutivo, mediante pesquisa bibliográfica e documental de doutrina e jurisprudência, especialmente dos tribunais superiores brasileiros e do Tribunal Europeu de Direitos Humanos, no âmbito do modelo garantista constitucional e também legal. Resultados: A possibilidade de iniciativa probatória pelo juiz no processo penal antes de iniciada a ação penal, expressa no art. 156, inciso I, do Código de Processo Penal, com a redação advinda da Lei nº. 11.690/2008, contrapõe-se ao garantismo penal, bem como à Constituição, por colocar em risco a imparcialidade judicial. A norma se exprime como resquício de um regime inquisitorial, por afrontar os direitos e as garantias fundamentais, notadamente o princípio da imparcialidade, alcançado por meio do distanciamento do magistrado da função probatória. Contribuições: O tema é relevante, pois abre espaço para uma análise precisa da persecução da verdade no contexto do processo penal ante a possibilidade de atuação ex officio do juiz na produção de provas, fato este que se contrapõe ao sistema processual acusatório adotado no Brasil, centrado na existência de sujeitos processuais diversos e detentores de funções distintas: acusar, defender e julgar, em consonância com o princípio do devido processo legal e de outros princípios corolários deste. Palavras-chave: sistema acusatório; garantismo processual; produção de prova ex officio; imparcialidade. ABSTRACT Objective: To analyze the possibility of producing ex officio evidence by the magistrate, provided for in item I of article 156 of the Code of Criminal Procedure, arising from the reform implemented by Law no. 11,690 / 2008, which amended the provisions relating to evidence in the Criminal Procedure in the light of the Constitution and the Penal Guarantee. Methodology: Analytic and deductive methods, by way of bibliographic and documentary research of doctrine and jurisprudence, especially from the Brazilian higher courts and the European Court of Human Rights, within the scope of the constitutional and also legal guarantee model. Results: The possibility of evidential initiative by the judge in the criminal process before the beginning of the criminal lawsuit, expressed in Article 156, item I of the Criminal Procedure Code, with the wording granted by Law no. 11,690/2008, opposes the criminal guarantee, as well as the Constitution, for putting at risk the judicial impartiality. The law expresses as a remnant of an inquisitorial regime to affront fundamental rights and guarantees, notably the principle of impartiality, achieved by way of distancing the magistrate from the evidence function. Contributions: The topic is relevant, as it opens up an accurate analysis of the pursuit of the truth in the context of criminal proceedings given the possibility of ex officio action by the judge in the production of evidence, a fact that contrasts with the accusatory procedural system adopted in Brazil, centered in the existence of different procedural subjects and holders of different functions: accusing, defending and judging, in line with the principle of due legal process and other corollary principles thereof. Keywords: accusatory system; procedural guarantee; production of ex officio evidence; impartiality.

scholarly journals Outlining Gay's Right to Health in Jember, Indonesia: Challenges and Opportunities

Lentera Hukum ◽  
2020 ◽  
Vol 7 (2) ◽  
pp. 121
Author(s):  
Dewi Rokhmah ◽  
Khoiron Khoiron ◽  
Ristya Widi Endah Yani
Keyword(s):  
Human Rights ◽  
Health Services ◽  
Health Workers ◽  
Right To Health ◽  
Hiv Prevalence ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
High Risk Behavior ◽  
Challenges And Opportunities ◽  
The Right

Increased HIV prevalence in gay populations is a warning that needs to get government attention. AIDS prevention programs in gay populations have been implementing various methods to change high-risk behavior. However, HIV prevalence in gay populations continues to rise. The Indonesian Constitution affirms human rights, including the right to life, the right against discrimination, and other fundamental rights protected by the state. The research results showed that the fulfillment of the right to health in gay is not going well or less effective. It was evidenced by the percentage of gay that reaches out to health services was still limited. Gays were reluctant to access health services because of the lack of confidentiality and privacy of the services of health workers, the general public, and the limited facilities. Besides, stigma and discrimination are still often received both from health workers and families and communities. They worried other gays would know the result of the test of VCT. There is a need for standardization of services at all subdistrict health centers and hospitals providing VCT services for gay in Jember. KEYWORDS: Constitutional Rights, Human Rights, the Right to Health.

scholarly journals The Brazilian influence in the new Latin American constitutionalism

2020 ◽  
pp. 72-87
Author(s):  
Achylles De Brito Costa ◽  
Clara Kelliany Rodrigues De Brito ◽  
Ana Campina
Keyword(s):  
Latin America ◽  
Latin American ◽  
Theoretical Framework ◽  
Fundamental Rights ◽  
The Political ◽  
Legal Process ◽  
New Form

The work on screen aims to demonstrate a new form of constitutionalist movement that has been gaining new contours in Latin America, called by the doctrine of new Latin American constitutionalism. This movement gained its heart due to the political-legal process that occurred in recent decades, aiming at guaranteeing the rights of minorities, whose theoretical framework also comes from the Brazilian Constitution of 1988 and its neo-constitutionalist bias, much criticized, at the time of its promulgation, for being too detailed or “garantista” too. But now, through its positivism certifying fundamental rights and guarantees influences the new constitutional movement, with even deeper changes and guarantees in the constitutions of Latin countries that seek to positive in their affirmative, inclusive and guarantor political constitutions, as well as constitutional and normative evolution based on certain criteria, values, interests and own objectives.

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