Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

scholarly journals KEWENANGAN MAHKAMAH AGUNG REPUBLIK INDONESIA DALAM PEMBUATAN PERATURAN TENTANG PERMOHONAN PERNYATAAN PAILIT MELALUI SURAT EDARAN (BELEIDSREGELS) DITINJAU DARI SUDUT ILMU PERUNDANG-UNDANGAN

2019 ◽  
Vol 2 (2) ◽  
pp. 646
Author(s):  
Samuel Tirta Handoyo ◽  
Cut Memi
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Descriptive Analysis ◽  
The State ◽  
Legal Research ◽  
Government Action ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Circular Letter ◽  
The Status

One important element of the rule of law is that any government action must be based on law. The consequence is that laws must be made, implemented and enforced. Therefore, the state has the power to make laws to regulate all its activities. The Supreme Court as one of the highest judicial institutions in Indonesia has the status of all the courts and as the highest court for the four judicial institutions. The regulating and oversight functions are part of the functions of the Supreme Court, where the Supreme Court is authorized to issue further regulations in the form of Supreme Court Regulations and Supreme Court Circular Letters, where Supreme Court Regulations are regulating, whereas Supreme Court Circular Letters are as policy regulations. However, in practice the substance of the Supreme Court Circular is often not in accordance with its requirements, namely as a policy regulation. One of them is the Supreme Court Circular Letter Number 2 Year 2016 concerning Increasing Efficiency and Transparency in Handling Bankruptcy Cases and Delaying Obligations of Debt Payment in Courts. The writing of this thesis will discuss the authority of the Supreme Court in determining the substance of the Supreme Court Circular Number 2 of 2016 in terms of statutory knowledge. Judging from its nature, the research used is descriptive analysis using normative legal research.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

The oath of a judge – oath of office and judicial symbol

2021 ◽  
pp. 85-92
Author(s):  
O. Kravchuk ◽  
I. Ostashchuk
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Symbolic Action ◽  
The Supreme Court ◽  
Conscious Choice ◽  
Justice Process ◽  
The Moment ◽  
First Time

The oath of a judge as an oath of office and as an element of judicial symbolism is considered in the article. The oath of a judge belongs to the categories of oaths of office, taken by an official upon taking office. At the same time, it belongs to the judicial oaths used in the justice process and is an element of judicial symbols. The oath of a judge as an oath of office symbolizes the endowment of a judge as an official by the state (judicial) power, the moment of his acquisition of powers (it is the inauguration ceremony), and the duty of a judge as an official to perform his duties properly. The oath of a judge as a judicial symbol represents a public and solemn obligation of the judge to exercise a fair trial in all its manifestations, including: independence and impartiality of the court, adversarial proceedings, equality of arms, and the rule of law. The judge takes the oath in a solemn atmosphere in the presence of senior officials (in Ukraine – in the presence of the President of Ukraine). It is an important ritual – a symbol of giving a person judicial power. The oath itself is a symbolic action of conscious choice of responsible and impartial observance of the law in the professional functions of realization of the rule of law for the good of all people. The coronavirus pandemic has shown that gathering a large number of people in one room can be problematic, so the oath ceremony was held even outdoors. It is stated that holding a ceremony in one of the judicial bodies, for example, in the premises of the Supreme Court or (subject to quarantine restrictions) in the territory of the Supreme Court may symbolize the independence of the judiciary and each judge from other branches of power. The peculiarity of the oath of a judge in Ukraine is its one-time nature. It should be taken only by a person first appointed to the position of a judge. In case of an appointment or transfer to another court, the judge shall not take the oath again. In this aspect, the oath of a judge is similar to the oath of a civil servant, which is taken only by persons recruited for the first time.

Part VI Refugee Rights and Realities, Ch.56 The Digital Transformation of Refugee Governance

2021 ◽  
Author(s):  
Sandvik Kristin Bergtora
Keyword(s):  
New Technology ◽  
Digital Transformation ◽  
Legal Rights ◽  
Refugee Status ◽  
Solution Processed ◽  
Protection Policy ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
Data Subject

This chapter evaluates four selected issues arising from the digital transformation of refugee protection, in order to explore how this transformation shapes and challenges refugee law. It focuses on the following domains: UNHCR’s 2015 Data Protection Policy, a concept (legal identity), a platform (databases), and legal-bureaucratic processes (refugee status determination and resettlement procedures). Digital transformation generates new risks, in part because it is premised on a duty of refugee visibility. The chapter argues that international refugee law, conceptually and in practice, appears to be moving towards an idea of ‘algorithmic protection’. First, digitization and the integration of new technology create risks and harms that can compromise existing legal rights and procedural guarantees but also threaten the integrity of refugee protection in new ways. Secondly, algorithmic protection is a useful concept because the digital transformation of refugee protection means that the duty of visibility and acquiescence to become a data subject has become a requirement for being registered as a refugee, receiving aid (eg biometric banking), and having one’s claim for a durable solution processed.

Language, Rights, Remedies, and the Rule of Law

1988 ◽  
Vol 1 (1) ◽  
pp. 35-62
Author(s):  
Denise Réaume
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Prima Facie ◽  
Supreme Court Of Canada ◽  
Language Rights ◽  
The Rule Of Law ◽  
English Only ◽  
The Status ◽  
French And English ◽  
Manitoba Act

When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.

scholarly journals KEPASTIAN HUKUM MENGENAI PERBEDAAN ANTARA PUTUSAN MAHKAMAH AGUNG DAN PUTUSAN MAHKAMAH KONSTITUSI TERKAIT PENCALONAN PERSEORANGAN PESERTA PEMILU ANGGOTA DPD

2019 ◽  
Vol 17 (1) ◽  
Author(s):  
Rasji . ◽  
Cinthia .
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Ruling ◽  
Legal Basis ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Law And Justice

Indonesia is a country based on the law (rechstaat) whose basis is stated in Article 1 Paragraph (3) of the UUD NRI 1945. The essential principles of the rule of law based on Article 24 Paragraph (1) of the UUD NRI 1945 are the guarantee of the organizer of the power of an independent judicial institution without interference from other parties to hold a court to uphold law and justice. Ideally, the results of the two institutions' decisions do not cause problems in society. However, the results of the decisions of the two institutions are still found differently regarding the issue of nominating individual participants in the members of the Regional Representatives Council. Any other way, the results of the Constitutional Court ruling prohibited members of the Regional Representatives Council who were still in the position of administrators of political parties. Meanwhile, the decision of the Supreme Court allows candidates for members of the Regional Representatives Council who are still in the position of managing political parties. In this study, the researcher will examine the differences between the Supreme Court's decision and the Constitutional Court's decision regarding the nomination of individual participants in the Regional Representatives Council by using normative legal methods and conducting interviews as supporting data. The results of the study revealed that based on the legal basis and authority of the institution, the verdict that had legal certainty regarding the nomination of individual participants in the Regional Representatives Council election was the decision of the Constitutional Court.

Expanding refugee ineligibility: Canada’s response to secondary refugee movements

2020 ◽  
Author(s):  
Idil Atak ◽  
Zainab Abu Alrob ◽  
Claire Ellis
Keyword(s):  
New Zealand ◽  
Asylum Seekers ◽  
Critical Assessment ◽  
Effective Protection ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Us ◽  
International Refugee Law ◽  
Legislative Changes ◽  
The Uk

Abstract In 2019, Canada introduced legislative changes that made asylum seekers ineligible for protection if they have made a previous refugee claim in a country that Canada shares an information-sharing agreement with. Such agreements are currently in place with the US, Australia, the UK, and New Zealand. This article offers a critical assessment of the new ineligibility ground, arguing that the policy is designed to deter secondary refugee movements, particularly those across the Canada–US border which have considerably intensified since 2017. Based on the ‘first safe country’ rule, the new ineligibility ground enables Canada to exclude some asylum seekers from refugee protection without offering any alternative effective protection in Canada. This article demonstrates that the policy is inconsistent with Canada’s obligations under international refugee law.

scholarly journals Fighting Human Smuggling or Criminalizing Refugees? Regimes of Justification in and around R v Appulonappa

2018 ◽  
Vol 33 (01) ◽  
pp. 21-39 ◽  
Author(s):  
David Moffette ◽  
Nevena Aksin
Keyword(s):  
Supreme Court ◽  
Asylum Seekers ◽  
Family Members ◽  
Sri Lankan ◽  
Human Smuggling ◽  
Mutual Aid ◽  
Criminal Offence ◽  
Refugee Protection ◽  
The Supreme Court ◽  
Pragmatic Sociology

AbstractFollowing the arrival of the MVOcean Ladyin 2009, four men were charged with human smuggling under s. 117 of theImmigration and Refugee Protection Actfor having helped Sri Lankan asylum seekers reach Canada. Section 117 made it a criminal offence to aid and abet the unauthorized entry of asylum seekers, including when this was done for humanitarian reasons, to help family members, or as a matter of mutual aid. The case made its way to the Supreme Court and, in 2015, the court ruled inR v Appulonappathat s. 117 was too broad, potentially criminalizing humanitarian workers and family members who help transport asylum seekers, and should be interpreted in a strict manner. This article draws from pragmatic sociology to study the regimes of justification mobilized by various actors involved in, and around,R v Appulonappabetween 2009 and 2015. It focuses on two sites of contestation that crystalized around divergent conceptions of fairness and safety, discussing how competing regimes of justification were used to advance stakeholder’s positions.

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