scholarly journals Menswaardigheid na tien jaar van regstaatlikheid in Suid-Afrika

2017 ◽  
Vol 7 (1) ◽  
pp. 70
Author(s):  
LWH Ackermann
Keyword(s):  
Human Dignity ◽  
Fundamental Rights ◽  
Educational Institutions ◽  
Bill Of Rights ◽  
South Africans ◽  
Constitutional State ◽  
The Right ◽  
Constitutional Jurisprudence ◽  
Normative Value

Human dignity has been the marrow of our Constitution and our constitutional state since 1994.  The inherent dignity of man is also a key principle of the Universal Declaration of Human Rights of 1948. The Kantian categorical imperatives continue to provide guidance regarding the meaning of human dignity. At the very least, people are entitled to be regarded as moral subjects and not as objects: as subjects with absolute and inherent worth and therefore also as moral subjects of equal worth. The juridical core of the pathology of apartheid was the extensive and sustained attempt to deprive the majority of South Africans of the right to self-identification and self-determination. It amounted to an inversion of the Kantian imperatives. A reversal of this inversion has been attempted over the past ten years.  The Constitution not only elevates human dignity to a specially entrenched value, but also affords it special protection in the context of fundamental rights.  It is furthermore a specific consideration in the limitation of rights and in the development of the common law. It applies not only to the state/subject relationship, but also to "horizontal" relationships and it must be taken into account in the interpretation of the Constitution. Constitutional jurisprudence has established that the Constitution is more than a formal document, but that it also represents an objective, normative value system.  Thus the foundational norm of human dignity radiates into all areas of the law.  The role of human dignity in the interpretation and application of norms applicable to remedial or restitutionary equality, as well as in the achievement of constitutional equilibrium in the "horizontal" operation of the Bill of Rights, has also been established. The realization of human dignity is but in its initial stages: civil society, including educational institutions, are called upon to make their contribution to the process.

scholarly journals Interview: Nuno Ferreira

2021 ◽  
Author(s):  
Nuno Ferreira
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Personal Characteristics ◽  
Fundamental Rights ◽  
Cultural Relativism ◽  
Legal Rights ◽  
Bill Of Rights ◽  
European Values ◽  
The Right ◽  
Human Rights Standards

The idea of European values has never played a central role in my research. Being a socio-legal scholar focused on human rights issues in the European context, I have always referred more specifically to particular legal rights, especially in relation to children’s rights, refugee rights and various aspects of the right to equality. Yet rights are inextricably linked to values: European societies like to see themselves as cherishing a catalogue of human rights that is central to their identity and every European country has some sort of bill of rights or text of a constitutional nature that contains various fundamental rights. In that sense, my work is also about values: the value of human dignity, of religious freedom, of equality, and so on.I would have immense difficulties defining European values. I suspect one would get as many different answers as different people asked this question. I would like to think that amongst such European values we can include democracy, equality, human dignity, and so on. But that does not mean these values are only, mainly or particularly European in any sense, as many countries and societies around the world also cherish and share such values. There is nothing intrinsically European about these values, and even history can show this, despite pervasive narratives that try to convince us otherwise. Instead, what matters is that these are values that we espouse and protect.European values inevitably have a personal value – in my particular case for several particular reasons. Having been born and grown up in Portugal, where democracy was only re-conquered in the 1970s and slowly solidified in the 1980s, cherishing the right to vote and freedom of speech was always crucial in my mind. And being gay has meant that I was always acutely aware of the importance of equality and the fight against discrimination, not only on grounds of sexual orientation, but on grounds of all other personal characteristics. Moreover, having had the privilege of taking part in several student exchange programmes and being yet another member of the ‘Erasmus generation’, I value immensely the right to education, the right to free movement, intercultural communication and respect for minorities. Despite the limits of cultural relativism and the need to hold on to human rights standards, we need to strive for much better knowledge and understanding of cultural differences.

ANALISIS YURIDIS PUTUSAN PENGADILAN NEGERI BLORA TENTANG DUALISME KEPENGURUSAN YAYASAN PENDIDIKAN ISLAM KARTAYUDA YANG AKTA PENDIRIANNYA DIBUAT OLEH DAN DIHADAPAN NOTARIS (Studi Kasus Putusan Perkara PN Blora No. 34/Pdt.G/2015/PN.Bla)

Jurnal Akta ◽  
2017 ◽  
Vol 4 (3) ◽  
pp. 463
Author(s):  
Muslim Ansori ◽  
Akhmad Khisni
Keyword(s):  
Private Schools ◽  
Education System ◽  
Crucial Role ◽  
The State ◽  
Educational Institutions ◽  
Legal Entity ◽  
Non Profit ◽  
The Right

With the enactment of the Education System Act no 20 of 2003 (better known as the Sisdiknas Act), the State has determined that educational institutions should have a legal umbrella in the form of a legal entity, or better known as the Legal Entity Education. As a non-profit organization, the Foundation is the right legal entity that becomes a place for educational institutions, especially private schools. Therefore, of course, Notary has a very crucial role in making notary deed in the form of establishment and deed of change, such as example how in making the right basic budget and not multi interpresatasi for stake holders in the foundation. Therefore, the role of function and authority of the organ of the foundation must be clearly stated in the articles of association, so as not to cause a dispute in the future.KEYWORDS: Notaries, Foundation, Organ Foundation,

El derecho a ser informado como elemento esencial del derecho a la protección de datos. Una visión crítica de la jurisprudencia del Tribunal Constitucional y de su cambio de doctrina en la STC 39/2016

2016 ◽  
pp. 191-216
Author(s):  
Miguel Ángel CABELLOS ESPIÉRREZ
Keyword(s):  
Video Surveillance ◽  
Data Protection ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Surveillance Systems ◽  
Control Technology ◽  
Specific Regulation ◽  
The Right

LABURPENA: Lan eremuan bideozaintzaren erabilerak ondorio garrantzitsuak dakartza funtsezko eskubideei dagokienez, esate baterako intimitateari eta datu pertsonalen babesari dagokienez. Hala eta guztiz ere, oraindik ez daukagu araudi zehatz eta espezifikorik kontrol-teknika hori lan eremuan erabiltzeari buruz. Horrek behartuta, errealitate horri araudi-esparru anitz eta generikoa aplikatzeko modua auzitegiek zehaztu behar dute, kontuan hartuta, gainera, Espainiako Konstituzioaren 18.4 artikulua alde horretatik lausoa dela. Konstituzio Auzitegiak, datuen babeserako funtsezko eskubidea aztertzean, datuen titularraren adostasuna eta titular horri eman beharreko informazioa eskubide horretan berebizikoak zirela ezarri zuen; hortik ondorioztatzen da titularraren adostasuna eta hari emandako informazioa mugatuz gero behar bezala justifikatu beharko dela. Hala ere, Konstituzio Auzitegiak, duela gutxiko jurisprudentzian, bere doktrina aldatu du. Aldaketa horrek, lan eremuan, argi eta garbi langileak informazioa jasotzeko duen eskubidea debaluatzea dakar, bere datuetatik zein lortzen ari diren jakiteari dagokionez. RESUMEN: La utilización de la videovigilancia en el ámbito laboral posee importantes implicaciones en relación con derechos fundamentales como los relativos a la intimidad y a la protección de datos personales. Pese a ello, carecemos aún de una normativa detallada y específica en relación con el uso de dicha técnica de control en el ámbito laboral, lo que obliga a que sean los tribunales los que vayan concretando la aplicación de un marco normativo plural y genérico a esa realidad, dada además la vaguedad del art. 18.4 CE. El TC, al analizar el derecho fundamental a la protección de datos, había establecido el carácter central en él del consentimiento del titular de los datos y de la información que debe dársele a éste, de donde se sigue que cualquier limitación del papel de ambos deberá estar debidamente justificada. Sin embargo, en su más reciente jurisprudencia el TC ha realizado un cambio de doctrina que supone, en el ámbito laboral, una clara devaluación del derecho a la información por parte del trabajador en relación con qué datos suyos se están obteniendo. ABSTRACT : T he use of video surveillance systems within the work sphere has major implications for fundamental rights such as privacy and data protection. Nonetheless, we still lack of a detailed and specific regulation regarding the use of that control technology within the work sphere, which obliges courts to define the application of a plural and generic normative framework to that issue, given the vagueness of art. 18.4 of the Constitution. The Constitutional Court, when analyzing the fundamental right to data protection, had settled the centralityof the consent of the data rightholder and of the information to be provided to the latter, and from this it followed that any restriction on the role of both rights should be duly justified. However, in its most recent case law the Constitutional Court has changed its doctrine which means, within the work sphere, a clear devaluation of the right of information by the employee regarding the obtained data of him/her.

Memory Laws as a Misuse of Legislation

2021 ◽  
pp. 1-16
Author(s):  
Eran Fish
Keyword(s):  
Free Speech ◽  
Fundamental Rights ◽  
Social Cooperation ◽  
Coordination Problem ◽  
Legal Coercion ◽  
The Right ◽  
With Memory

Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.

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).

Judges and Human Rights: The Kenyan Experience

1991 ◽  
Vol 35 (1-2) ◽  
pp. 142-173 ◽  
Author(s):  
Gibson Kamau Kuria ◽  
Algeisa M. Vazquez
Keyword(s):  
Attorney General ◽  
Fundamental Rights ◽  
The Other ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
High Court ◽  
Rules Of Procedure ◽  
Fundamental Rights And Freedoms ◽  
The Individual

On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

scholarly journals THE RIGHT TO HUMAN DIGNITY IN THE SYSTEM OF CONSTITUTIONAL RIGHTS OF UKRAINE AND GERMANY

2020 ◽  
pp. 27-32
Author(s):  
O. Kosilova
Keyword(s):  
Human Dignity ◽  
Human Life ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Eral Republic ◽  
Human Right ◽  
Fundamental Value ◽  
The Right

The article analyzes human dignity as a legal category and fundamental natural human right. The place and role of the right to human dignity in the system of constitutional rights of Ukraine and Germany are compared. The scientific substantiation of the right to human dignity in Ukraine and Germany, its normative protection in both countries, is investigated. The approaches to defining and interpreting the right to human dignity in the practice of the Constitutional Court of Ukraine and the Federal Constitutional Court of Germany are compared. The relationship between the right to human dignity and other human rights is determined, as well as the sphere of protection of this right. In particular, there are parallels between the right to life and the right to human dignity, and their relationship is determined. It is substantiated that the human life and dignity of each person enjoy the same constitutional protection regardless of the duration of the individual's physical existence. It is established that among Ukrainian scholars there is no unified view of the right to dignity as a fundamental natural right. The right to human dignity in Ukraine is enshrined in the norms of constitutional, civil and criminal law. For the most part, the protection of the right to human dignity is correlated with the right to the protection of honour and goodwill. The right to human dignity and honour are not clearly distinguished. The legisla- tion of Ukraine does not contain a legal norm defining the concept of the right to human dignity. The case-law of the Constitutional Court of Ukraine in this area is not sufficiently developed and does not constitute a proper legal framework. In Germany, the right to human dignity is a decisive and fundamental human right that is fundamental to all other rights. Human dignity is the supreme fundamental value and the root of all fundamental rights. The right to human dignity enshrined in Article 1 of the Constitution of the Fed- eral Republic of Germany defines it as an absolute value, which means that it cannot be restricted by any other norm, even by another fundamental right that follows from human dignity.

scholarly journals The duty to work as precondition for human dignity: a Swiss perspective on work programmes

2020 ◽  
pp. 89-112
Author(s):  
Melanie Studer ◽  
Kurt Pärli
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Fundamental Rights ◽  
Eligibility Criterion ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
The Right ◽  
Federal Supreme

In Switzerland, the participation in certain work programmes is an eligibility criterion to social assistance benefits and the constitutionally granted right to the financial means required for a decent standard of living. This chapter examines whether the implementation of these programmes is in accordance with fundamental rights and more precisely, whether they respect the normative framework elaborated in Chapter 4. As will be shown, the right to financial assistance when in need has close links to human dignity. Therefore, the evaluation of the mentioned work programmes against the human rights background leads to some critical conclusions on their compatibility with international human rights law in general and human dignity in particular. Especially, the authors argue that the Swiss Federal Supreme Court’s case law lacks a comprehensive approach for the evaluation of human rights infringements in this context.

scholarly journals Interpretation of the Constitutional provisions relating to international law

2017 ◽  
Vol 6 (2) ◽  
pp. 25
Author(s):  
Michele Olivier
Keyword(s):  
International Law ◽  
South African ◽  
International Agreements ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
Customary International Law ◽  
The Status ◽  
First Time ◽  
Domestic Law

The 1993 Constitution,1 for the first time in South African history accorded constitutional recognition to international law, thereby bringing an end to the debate on the status of international law in South African domestic law. This step was a symbolic break from the apartheid legal system, which was closely associated with the violation of international law and indicated to the international community that South Africa was willing to abide by internationally accepted rules. More important, however, for South African lawyers are the fundamental changes the constitutional regulation of international law introduced into South African law. The 1993 Constitution dealt with the conclusion of international agreements (sections 82(1)(i) and 231(2)), the status of international law in South African law (section 231(3) and (4)) and the role of international law in interpreting the chapter on fundamental rights (section 35(1)). These provisions were substantially taken over by the 1996 Constitution. The provisions relating to the entry into international agreements and the status thereof in terms of South African law are once again dealt with under section 231. The provisions on customary international law are dealt with separately under section 232. Section 233 deals with the role of international law in the interpretation of legislation, whilst section 39, the equivalent of section 35 of the 1993 Constitution, provides for international law in interpreting the Bill of Rights.

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