Constitutional Analysis of the Mandatory Administrative-Tax Adjudication Proceeding System and Preliminary Remedies ― Focusing on the Historical Background and Its Relation to the Constitutional Right to a Fair Trial ―

2021 ◽  
Vol 27 (3) ◽  
pp. 165-305
Author(s):  
Si Cheol Kim
Keyword(s):  
Fair Trial ◽  
Historical Background ◽  
Constitutional Right ◽  
Constitutional Analysis

In Camera Inspections of Privileged Records in Sexual Assault Trials: Balancing Defendants' Rights and State Interests Under Massachusetts's Bishop Test

1995 ◽  
Vol 21 (1) ◽  
pp. 131-164
Author(s):  
Ellen M. Crowley
Keyword(s):  
Sexual Assault ◽  
State Legislatures ◽  
State Legislature ◽  
Fair Trial ◽  
Criminal Trials ◽  
Public Scrutiny ◽  
Constitutional Right ◽  
Case Basis

A sexual assault trial requires a court to balance evidentiary privileges enacted by a state legislature against a criminal defendant's constitutional trial rights. State legislatures enact various privileges which either limit or prohibit the discovery of confidential communications in criminal trials. Such statutes reflect a firmly based legislative effort to protect citizens’ private and personal confidences from unwarranted public scrutiny. When a defendant charged with sexual assault seeks to compel discovery of the victim's privileged medical, psychiatric, or counseling records, a conflict inevitably arises. States and victims assert that courts must respect statutory assurances of confidentiality; defendants assert that their constitutional right to a fair trial and their right to confront the witnesses and evidence against them mandates disclosure. Resolution of this pressing conflict requires a careful balancing of both the state's and defendant's interests on a case by case basis.

scholarly journals Unlawful Occupation of Inner-City Buildings: A Constitutional Analysis of the Rights and Obligations involved

2017 ◽  
Vol 17 (4) ◽  
pp. 1261
Author(s):  
Janke Strydom
Keyword(s):  
Property Rights ◽  
Inner City ◽  
Affordable Housing ◽  
Low Income ◽  
Urban Areas ◽  
Inner Cities ◽  
Constitutional Right ◽  
Economic Landscape ◽  
The Individual ◽  
Constitutional Analysis

The unlawful occupation of inner-city buildings in South Africa has led to a number of legal disputes between vulnerable occupiers and individual landowners that highlight the conflict between individuals' constitutional right not to be evicted in an arbitrary manner and property owners' constitutional right not to be deprived of property arbitrarily. The cause of this tension is a shortage of affordable housing options for low-income households in the inner cities, a fact which shows that the state is evidently struggling to give effect to its housing obligation embodied in section 26(1) and (2) of the Constitution. In the majority of cases the courts assume that any interference with private landowners' rights beyond a temporary nature would be unjustifiable, but they do this without undertaking a proper constitutional analysis to determine whether a further limitation of the individual landowner's property rights might be justifiable and non-arbitrary in the circumstances of each case.In general the courts can allow, suspend or refuse the eviction of unlawful occupiers, provided that the order does not amount to an arbitrary deprivation of property. Nevertheless, in some instances the arbitrary deprivation of property is unavoidable, despite the court's best efforts to protect property entitlements. These eviction cases show the limits of the courts' powers both to provide adequate solutions to protect owners' property rights and to give effect to the constitutional housing provision.In the light of three eviction cases, namely Blue Moonlight, Modderklip and Olivia Road, this article explains the role of the court and the local authority, together with the entitlements and social obligations of inner-city landowners within the framework of the property clause, in order to analyse the constitutionality of the courts' decisions and to suggest ways in which the inner-city housing shortage may be addressed more effectively. This article also considers how two foreign jurisdictions, namely England and the Netherlands, have managed the precarious relationship between urban landowners – who often allow buildings to decay and stand vacant – and the homeless. These jurisdictions provide innovative alternatives to the expropriation of the ownership of private inner-city properties for housing purposes. Similar measures, tailored to accommodate the South African constitutional, economic and socio-economic landscape, may be a welcome addition to the existing statutory powers of the local authorities tasked with combatting homelessness in urban areas.

scholarly journals Challenges to the sub judice rule in South Africa

2014 ◽  
Vol 70 (1) ◽  
Author(s):  
Kobus Van Rooyen
Keyword(s):  
Doctoral Students ◽  
South African ◽  
Freedom Of Expression ◽  
Fair Trial ◽  
South Africans ◽  
The Bible ◽  
The Media ◽  
Entire Career ◽  
Constitutional Right ◽  
The Right

As a lawyer, it is a privilege to contribute to this Festschrift in honour of Professor Doctor Johan Buitendag. His entire career has been a quest for the truth. In the process, he has fearlessly rejected political agendas based on the Bible, and has inspired countless students in their quest to serve God in a practical and humane manner. His published research as well as the output of his doctoral students, both present and past, bear witness to a life dedicated to the search for knowledge in the service of God. He has also assisted substantially in placing South African theological research on the international map. In a sense, this article which deals with the protection of the right to a fair trial of an accused, also acknowledges Johan Buitendag’s quest for justice for all South Africans, whatever their creed, gender, race or standing. The subject of my article demonstrates my own quest to promote the constitutional right of an accused to a fair trial, a right that should not be subject to inordinate pressure by the media, and which gives priority to the right of an accused to be presumed innocent: an accused who may frequently suffer loneliness and a sense of rejection. Related to that it is, of course, always important to bear in mind that freedom of expression is at the heart of our democracy. A balance has, accordingly, to be struck between the competing rights.

Judicial Standard of Review and Webster

1989 ◽  
Vol 15 (2-3) ◽  
pp. 211-216
Author(s):  
James Bopp ◽  
Richard E. Coleson
Keyword(s):  
Reproductive Health ◽  
Health Services ◽  
Judicial Review ◽  
Rational Basis ◽  
Reproductive Health Services ◽  
Low Level ◽  
Strict Scrutiny ◽  
Constitutional Right ◽  
Roe V Wade ◽  
Constitutional Analysis

The necessary first step in the judicial review of any state statute is to determine the appropriate standard of review. Without resolution of this threshold issue, the court would be uncertain what constitutional analysis to employ, whether a low level of scrutiny, strict scrutiny or some intermediate standard.Thus, in Webster v. Reproductive Health Services, the Court should not merely assume, without confronting, the continued viability of Roe v. Wade. Failure to reexamine Roe would depart from precedents of the Court and lead to untoward results.In determining the standard of review to be applied to the Missouri statute at issue in Webster, the Court should be guided by the analysis of Bowers v. Hardwick, and find that there is no constitutional right to abortion. Thus, the standard of review to be employed in Webster is the rational basis test. Under this test, the Missouri statute should be upheld.

scholarly journals Judicial Independence and Impartiality of Judiciary: A Comparative Study

2018 ◽  
Vol 5 (2) ◽  
pp. 4383-4386
Author(s):  
Fozia Shaheen ◽  
Mamoona Khalid
Keyword(s):  
Comparative Study ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Fair Trial ◽  
The Body ◽  
Public Confidence ◽  
Independent Judiciary ◽  
Separate Branch ◽  
International Instruments ◽  
Constitutional Analysis

Vesting judicial power in a separate branch under the doctrine of separation of power requires impartiality of the body exercising judicial powers, in order to develop public confidence on the judiciary. An independent judiciary has always been acted as a guardian of constitution and individual rights. Independence and impartiality of the judiciary is not only necessary for fair trial but also pre-requisites for the application of Rule of Law. If judiciary is biased then there will be chaos and tyranny. Right of fair trial before independent and impartial tribunal is an internationally recognized right under International Instruments. This Article is intended to explore the importance of doctrine of judicial impartiality for preserving Judicial Independence in Constitutional analysis perspective of Pakistan, UK and USA.

Sign in / Sign up

Export Citation Format

Share Document