Undocumented Migrants and Detention Facilities

2014 ◽  
Author(s):  
Jelka Zorn
Keyword(s):  
Due Process ◽  
Political Community ◽  
Community Life ◽  
Undocumented Migrants ◽  
Ethical Considerations ◽  
Liberal Democracies ◽  
Immigrant Detention ◽  
The Right ◽  
Detention Facilities ◽  
Formal Status

Being undocumented does not mean being without ties to one’s host society: undocumented immigrants might work and have family and friends; they might be active in community life, etc. However, due to a lack of formal status, they are vulnerable to detention and deportation. Instead of vilifying migrants for their irregular situation, the article sees immigration controls as a source of unjust policies and practices. Immigrant detention means administrative imprisonment without the normal due process safeguards commonly demanded in liberal democracies. Its consequences are separated families and broken individuals. Social work is seen as a profession developing ethical considerations and arguments to advocate for the right to belong to an organized political community, the right to social security, and the right to personal liberties being applicable to all people, regardless of their immigration status.

The Metalegal God

2014 ◽  
Vol 16 (2) ◽  
pp. 147-167
Author(s):  
Rafael Domingo
Keyword(s):  
Legal System ◽  
Legal Reasoning ◽  
Political Community ◽  
Legal Systems ◽  
Liberal Democracies ◽  
Proper Understanding ◽  
The Public ◽  
The Public Sphere ◽  
Normative Argument ◽  
The Right

This article deals with the relation between God and the secular legal systems of Western liberal democracies. It provides a normative argument for the compatibility of God and secular legal reasoning. In our age, in which believing in God is no longer socially axiomatic and the right to religious freedom protects all kinds of theistic and non-theistic religious beliefs, creeds and first philosophies, it seems contrary to religious neutrality for secular legal systems to single out God. This article instead argues that, although God and religion are inextricably intertwined, they affect the legal system in different ways because they are ontologically different. God cannot be reduced to a mere component of theistic religion. A proper understanding of secularisation might call for keeping God outside the legal system but not for driving God out of the public sphere of democratic societies. Secular legal systems are not atheist legal systems; they are legal systems ‘without religion’ but not ‘without God’. Secularisation implies some degree of minimal recognition of God as a metalegal concept. The specific degree of recognition of God appropriate for any given political community depends on its cultural and communitarian identity and should be subject to the rules of democratic procedures and majorities. This is the metalegal God.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Sedition in Liberal Democracies

2018 ◽  
Author(s):  
Anushka Singh
Keyword(s):  
Freedom Of Expression ◽  
Legal Protection ◽  
Community Based ◽  
Political Speech ◽  
Liberal Democracies ◽  
Indian Experience ◽  
Judicial Discourse ◽  
The Law ◽  
The Government ◽  
The Right

Liberal democracies claim to give constitutional and legal protection of varying degrees to the right to free speech of which political speech and the right to dissent are extensions. Within the right to freedom of expression, however, some category of speeches do not enjoy protection as they are believed to be ‘injurious’ to society. One such unprotected form of political speech is sedition which is criminalized for the repercussions it may have on the authority of the government and the state. The cases registered in India in recent months under the law against sedition show that the law in its wide and diverse deployment was used against agitators in a community-based pro-reservation movement, a group of university students for their alleged ‘anti-national’ statements, anti-liquor activists, to name a few. Set against its contemporary use, this book has used sedition as a lens to probe the fate of political speech in liberal democracies. The work is done in a comparative framework keeping the Indian experience as its focus, bringing in inferences from England, USA, and Australia to intervene and contribute to the debates on the concept of sedition within liberal democracies at large. On the basis of an analytical enquiry into the judicial discourse around sedition, the text of the sedition laws, their political uses, their quotidian existence, and their entanglement with the counter-terror legislations, the book theorizes upon the life of the law within liberal democracies.

Introducing Victim Impact Statement in India: Reconceptualizing Victim Status

2021 ◽  
pp. 251660692199175
Author(s):  
Devansh Dubey ◽  
Payas Jain
Keyword(s):  
Criminal Justice ◽  
Subjective Experience ◽  
Due Process ◽  
Not Given ◽  
Therapeutic Tool ◽  
Victim Status ◽  
Victim Impact Statement ◽  
The World ◽  
Due Process Of Law ◽  
The Right

The right to fair trial is inherent in the concept of due process of law, which now forms part of Article 21 of Indian Constitution after the Maneka Gandhi judgement. Pertinently attached with the same comes the responsibility of the criminal system to treat victims with increased awareness and sensitivity. However, the established convention shows that in planning and developing administration of criminal justice, proper attention is not given to the victims of crime in achieving goals of criminal justice; the major cause of it being that a victim is heard only as a witness not as a victim. A credible response to the said issue has emerged in the form of victim impact statement (VIS) in the modern legal system across the world. With that being said, the researchers through this article try to deduce the need for incorporating a VIS in India through the various jurisprudential understandings of what it means to be a victim, including the gap between the subjective experience of the sufferer and the interpretation of the same by others, and what restorative justice would mean to heal a victim. Establishing upon the same premise of victim status, the researchers try to suggest that the introduction of VIS, with the primary purpose of it being a therapeutic tool and not an instrument of changing the course of justice, will serve to make us reconsider our contours of a ‘victim’.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

scholarly journals Free Trade and Empire in the Anglo-Irish Commercial Propositions of 1785

2013 ◽  
Vol 52 (1) ◽  
pp. 103-127 ◽  
Author(s):  
James Livesey
Keyword(s):  
Political Economy ◽  
Free Trade ◽  
Free Trade Area ◽  
Political Reform ◽  
Political Community ◽  
Trade Area ◽  
Institutional Frameworks ◽  
The Right ◽  
Liberal Political Economy ◽  
Open Markets

AbstractWilliam Pitt's 1785 proposal for a free trade area between Britain and Ireland attempted to use free trade as a mechanism of imperial integration. It was a response to the agitation for political reform in Ireland and followed the attainment of legislative independence in 1782. The proposal aimed at coordinating economic and fiscal policy between the kingdoms without imposing explicit political controls. This article establishes that the measure failed because of the lack of consensus around the idea of free trade. Three contrasting ideas of free trade became apparent in the debates around the propositions of 1785: imperial or neomercantilist free trade, Smithean free trade, and national or neo-Machiavellian free trade. Imperial free trade was critical of monopolies but sought to organize trade to the benefit of the imperial metropole; Smithean free trade saw open markets as a discipline that assured efficiency but required imperial institutional frameworks, legally secured, to function. Neo-Machiavellian free trade asserted the right of every political community to organize its trade according to its interests. The article establishes the genealogy of these three positions in pamphlet debates and political correspondence in Britain and Ireland from 1689 to 1785. It argues that majority political opinion in Ireland, with exceptions, understood free trade in a neo-Machiavellian sense, while Pitt was committed to a Smithean ideal. The propositions collapsed because these internal tensions became more evident under the pressure of criticism. Liberal political economy did not of itself offer a route to a British exceptionality that finessed the tensions inherent in empire.

scholarly journals EL DERECHO A PROBAR EN EL PROCEDIMIENTO DE INVESTIGACIÓN Y SANCIÓN DEL HOSTIGAMIENTO SEXUAL: ¿UNA GARANTÍA RECORTADA?

2020 ◽  
pp. 91-102
Author(s):  
LUIS MARTÍN BRAVO SENMACHE
Keyword(s):  
Sexual Harassment ◽  
General Theory ◽  
Due Process ◽  
The Other ◽  
Legislative Reform ◽  
Due Process Of Law ◽  
The Right

Con base en la teoría general del proceso, la investigación determina que en el Procedimiento de Investigación y Sanción del Hostigamiento Sexual (PISHS)es identificable la estructura del contradictorio, por lo que su naturaleza es la de un proceso. Sin embargo, la revisión del tratamiento normativo que el PISHS ha dedicado al derecho a la prueba de la parte acusada pone en evidencia que, en la estructura de dicho proceso, el contradictorio no ha sido implementado más que parcialmente, dado que su dimensión sustancial (específicamente, el poder de influencia) no ha sido cabalmente asegurada a favor del presunto/a hostigador/a. Dos escenarios se erigen como posible solución al problema: uno a través de la vía de hecho (preferencia del principio del debido proceso) y otro mediante la reforma legislativa del art. 17.2 del reglamento. Based on the general theory of the process, the investigation determines that in the Investigation and Sanction Procedure for Sexual Harassment (PISHS) the structure of the contradictory is identifiable, so its nature is that of a process. However, the review of the normative treatment that the PISHS has dedicated to the right to proof of the accused party shows that, in the structure of said process, the contradictory has only been partially implemented, given that its substantial dimension (specifically, the power of influence) has not been fully secured in favor of the alleged harasser. Two scenariosare erected as a possible solution to the problem: one through the facto route (preference for the principle of due process of law) and the other through the legislative reform of the art. 17.2 of the reglament.

scholarly journals Le recouvrement de l'impôt et les droits de la personne

2005 ◽  
Vol 24 (3) ◽  
pp. 457-475
Author(s):  
Henri Brun
Keyword(s):  
Human Rights ◽  
Income Tax ◽  
Due Process ◽  
Tax Law ◽  
Canadian Charter ◽  
Section 8 ◽  
Procedural Due Process ◽  
Due Process Of Law ◽  
Income Tax Law ◽  
The Right

Those who like to pay tax are few. Accordingly, income tax is often described as a shame. Of course, the right to enjoyment of property is at stake in the matters of taxation. And the collection of taxation involves also other aspects of the right to substantive and procedural due process of law : right to privacy, to be heard, to unbiassed decision, to professional secrecy... This article contrasts these rights, as they are expressed in sections 5 to 9 and 23 of the Charte des droits et libertés de la personne of Québec and section 8 of the Canadian Charter of Rights and Freedom, with sections 13 to 16 and 38 and following of the Loi sur le ministère du revenu of Québec and sections 159, 231 and 232 of the Canadian Income Tax Act. It finds that it is the application of the income tax law, more than the law itself, that threatens human rights. It concludes that the main benefit of both Charters of rights is to provide a shelter from such unreasonnable application

scholarly journals Article 22: The Right to Protection for Refugee and Asylum-Seeking Children

2022 ◽  
pp. 357-367
Author(s):  
Christian Whalen
Keyword(s):  
Due Process ◽  
Hague Convention ◽  
Refugee Children ◽  
Best Interest ◽  
Human Right ◽  
Refugee Child ◽  
Residency Status ◽  
Alternative Measures ◽  
Children First ◽  
The Right

AbstractArticle 22 guarantees the substantive application of all Convention rights to the particular situation of asylum seeking and refugee children, and also guarantees them protection and assistance in advancing their immigration and residency status claims and in overcoming the hurdles posed by international migration channels, including guarantees of due process. The rights of refugee and asylum-seeking children can be analyzed in relation to four essential attributes. First of all, Article 22 insists upon appropriate protection and humanitarian assistance. Refugee children are not granted a special status under the Convention, but they are not given any lesser status. They are to be treated as children first and foremost and not as migrants per se, in the sense that national immigration policy cannot trump child rights. The basic rights to education, health, and child welfare of these children needs to be protected to the same extent, and as much as possible, as children who are nationals of the host country. The second attribute preserves the rights of refugee children not only under the Convention but under all other international human right treaties and humanitarian instruments binding on the relevant States Party. These may include, for many governments, the 1951 Refugee Convention, the Convention on the Reduction of Statelessness, the Geneva Conventions and the Hague Convention for the Protection of Minors, 1961, among others. A third attribute of Article 22 insists upon the duty to protect and assist refugee children. This entails a clear duty to provide children with appropriate due process rights throughout their asylum and refugee claims procedures, including the child’s right to be heard and participate in all the processes determining the child’s residence or immigration status, border admission, deportation, repatriation, detention, alternative measures, or placement, including best interest determination processes. The fourth and final attribute of Article 22 asserts that two basic principles should guide each activity with the refugee child: the best interests of the child and the principle of family unity.

Sign in / Sign up

Export Citation Format

Share Document