scholarly journals Declarations of Invalidity in Superior Courts

2019 ◽  
Vol 28 (3) ◽  
Author(s):  
Mark Mancini
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Short Paper ◽  
Lower Court ◽  
Stare Decisis ◽  
Binding Effect ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law

Section 52(1) of the Constitution Act, 1982 empowers courts to declare unconstitutional laws that are inconsistent with the Constitution “to the extent of their inconsistency.”1 Section 52 is a powerful tool in the hands of judges. For example, a claimant need not be directly affected by an unconstitutional law to raise a challenge to that same law,2 and once a court declares a law invalid under section 52, the law is effectively removed from the statute books.3 A key question is whether such a declaration, issued by one judge of a multi-member lower court, binds another judge of that same court. This phenomenon can be broadly described as “horizontal stare decisis.”4 But the Supreme Court has only explored horizontal stare decisis in the context of revisiting its own decisions.5 It has never opined on whether there is something special about horizontal stare decisis in lower courts, especially involving constitutional declarations under section 52; specifically, whether one judge is bound by another judge’s declaration of invalidity. This issue was directly confronted in the McCaw case at the Ontario Superior Court.6 Faced with a previous section 52 declaration of invalidity issued against section 33.1 of the Criminal Code, Spies J found that she was bound by that declaration. Accordingly, she found section 33.1 unconstitutional. In this short paper, after reviewing the salient facts of McCaw, I argue that Spies J’s ruling is broadly consistent with Supreme Court constitutional remedies doctrine, which is basically formalist in nature and permits no discretion on the part of judges to depart from the binding effect of a s.52 remedy. I then deal with two objections to this position. Ultimately, while one can question the coherence of the Supreme Court’s doctrine, McCaw represents a defensible application of it.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

scholarly journals Ajaran Turut Serta Tindak Pidana Korupsi

2019 ◽  
Vol 3 (1) ◽  
pp. 35-52
Author(s):  
Harry Arfhan ◽  
Mohd. Din ◽  
Sulaiman Sulaiman
Keyword(s):  
Supreme Court ◽  
Legal Regulation ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Criminal Offense ◽  
The Public ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
Banda Aceh

Penyertaan pada dasarnya diatur dalam pasal 55 dan 56 KUHP yang berarti bahwa ada dua orang atau lebih yang melakukan suatu tindak pidana atau dengan perkataan ada dua orangatau lebih mengambil bahagian untuk mewujudkan suatu tindak pidana. Penyertaan di dalam Undang-Undang Pemberantasan Tindak Pidana Korupsi yaitu Undang-Undang Nomor 31 Tahun 1999 jo Undang-Undang Nomor 20 tahun 2001 disebut sebagai pembantuan.Dalam putusan Kasasi Mahkamah Agung Nomor : 1769 K/PID.SUS/2015 menyatakan bahwa Terdakwa I Indra Gunawan Bin Alm. Saleh tersebut tidak terbukti secara sah dan menyakinkan bersalah melakukan perbuatan sebagaimana yang didakwakan dalam semua dakwaan Penuntut Umum dan Menyatakan Terdakwa II Irfan Bin Husen telah terbukti secara sah dan meyakinkan bersalah melakukan tindak pidana “Turut Serta Melakukan Korupsi”. Majelis Hakim Judex Factie Pengadilan Tinggi/Tipikor Banda Aceh dalam memeriksa dan mengadili perkara Aquo telah salah dalam menerapkan hukum atau suatu peraturan hukum tidak diterapkan atau diterapkan tidak sebagaimana mestinya, yaitu mengenai penerapan hukum pembuktian sehingga harus dibatalkan oleh Mahkamah Agung Republik Indonesia.The participation is basically regulated in articles 55 and 56 of the Criminal Code, which means that there are two or more people who commit a crime or say that there are two or more people taking part to realize a crime. The participation in the Law on the Eradication of Corruption Crime namely Law Number 31 of 1999 in conjunction with Law Number 20 of 2001 is referred to as assistance. In the decision of the Supreme Court Cassation Number: 1769 K / PID.SUS / 2015 stated that Defendant I Indra Gunawan Bin Alm. Saleh is not proven legally and convincingly guilty of committing an act as charged in all charges of the Public Prosecutor and Stating Defendant II Irfan Bin Husen has been proven legally and convincingly guilty of committing a criminal offense "Also Participating in Corruption". Judex Factie Judge of the High Court / Corruption Court in Banda Aceh in examining and adjudicating the case of Aquo has been wrong in applying the law or a legal regulation was not applied or applied improperly, namely regarding the application of verification law so that it must be canceled by the Supreme Court of the Republic of Indonesia.

scholarly journals The Perpetrator of the Crime in Complicity and without Complicity: A Universal Role in the Diversity of Legal Constructions

Lex Russica ◽  
2021 ◽  
pp. 107-122
Author(s):  
D. M. Molchanov
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Code ◽  
Main Element ◽  
The Supreme Court ◽  
Special Part ◽  
The Status ◽  
The Russian Federation ◽  
The Law ◽  
Legal Sense

A comprehensive study of the perpetrator’s role leads to the following conclusions: “perpetrator of the crime” is a universal term used to describe an act that constitutes an objective element of the crime committed both in complicity and without complicity. Four alternatives to the actions of the perpetrator exist: executor who performed the objective element alone, an accomplice who performed the objective element with other accomplices, an indirect perpetrator, an indirect accomplice. Other ways to qualify person’s act as a perpetrator are based not on the law, but on the recommendations of the Plenum of the Supreme Court of the Russian Federation that de facto acquired the status of the provisions of the Criminal Code of the Russian Federation (joint participation in the organized group, joint participation in a crime with “technical distribution of roles”). The main element of the act of the perpetrator includes the fulfillment of the objective element described in the disposition of the article of the Special Part. The content of the objective element of a particular crime does not depend on the existence of complicity, hence the term “perpetrator” is applicable to any crime and has a universal value. It is impractical to describe in the law the same acts in different terms. “Technical distribution of roles” is a doctrinal term. Its content is disclosed in some resolutions of the Plenum of the Supreme Court of the RF. Extensive interpretation of the term “perpetrator” in crimes with “technical distribution of roles” is a forced measure on the part of the Supreme Court of the Russian Federation, since the term “the group of persons in conspiracy” is interpreted restrictively. This interpretation complicates the application of the criminal law and does not allow us to adequately assess the greater risk of crimes committed in complicity. The term “technical distribution of roles” does not have a universal (acknowledged) interpretation in jurisprudence, which also makes it difficult to apply the law. Joint participation in a legal sense in crimes committed by an organized group is a construct that is not based on law applied to crimes with a special subject, which contradicts part 4, Art. 34 of the Criminal Code of the Russian Federation.

scholarly journals The Concept of Freedom of Enterprise Through the Prism of Criminal Law Characteristics of Fraud

2019 ◽  
Vol 13 (2) ◽  
pp. 291-299
Author(s):  
Yekaterina Yakimova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Code ◽  
Negative Results ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Law ◽  
Entrepreneurial Activities

The research of issues connected with the analysis of business risks is relevant because of the problem of qualifying the actions of entrepreneurs under the fraud-related Articles of the Criminal Code of the Russian Federation. Besides, the development of technologies increases the number of frauds in the digital environment, which makes it necessary to determine key features of fraudulent actions connected with the changes in the economic organization of the society connected with the digital transformation of some branches of the world economy in general and Russian economy in particular, of the social sphere, and of the specifics of public administration of some areas of life. The responsiveness of lawmakers manifested in amending a group of Articles in the Criminal Code of the Russian Federation regarding the legal characteristics of fraud, shows that there are some problems in the legislative regulation of this sphere. The author believes that they are caused by an attempt to assess the degree of freedom of enterprise and the degree of involvement of each side of legal relations in the risk of investment. The analysis of legislation, the law enforcement practice, statistical data give reason to believe that most of the problems of legislative understanding of fraud in entrepreneurship are not connected with contradictions in the legal regulation, but rather with the drawbacks of the law enforcement practice, the prevalence of repressive methodology in classifying the actions of entrepreneurs and the inner conviction of the law enforcement employees that entrepreneurs intentionally strive to obtain negative results in any, and primarily entrepreneurial, activities. The author argues that further improvement of the Criminal Code of the Russian Federation will not yield any tangible results, which testifies to a considerable transformation of the fraud-related Articles in the last 15 years. Changes in the practice of enforcement of the criminal law’s articles regarding fraud are only possible after the principles of such work are worked out by the Supreme Court of the Russian Federation, who at present pays much attention to this issue, although some clauses of the Plenary Session of the Supreme Court of the Russian Federation require further analysis and improvement.

scholarly journals The Supreme Court and the Law of Obligations

1969 ◽  
pp. 149
Author(s):  
G. H. L. Fridman
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law

In this article, Professor Fridman criticizes the Supreme Court of Canada for what he feels to be its lack of independence of thought and reasoning in its tendency to apply English precedents rather than to develop its own opinions in the area of contracts, quasi-contracts and torts. He recommends that the Court should analyse problems in depth at every opportunity afforded to it so as to provide greater guid ance for the lower Courts of Canada.

Consideraţii critice referitoare la Decizia nr. 12/2020, pronunţată de Înalta Curte de Casaţie şi Justiţie – Completul pentru soluţionarea recursului în interesul legii

2020 ◽  
Vol 2020 (2020) ◽  
pp. 38-53
Author(s):  
Claudia ROȘU ◽  
◽  
Alin SPERIUSI-VLAD ◽  
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
The Other ◽  
Correct Interpretation ◽  
Bad Faith ◽  
Lower Court ◽  
Civil Action ◽  
The Supreme Court ◽  
The Law

"The authors analyzed the decision of the Supreme Court by an appeal in the interest of the law, regarding the possibility of the party fined according to art. 187 parag. (1) pt. 1 let. a) Code of Civil Procedure, for the introduction, in bad faith, of a civil action, accessory, additional or incidental requests, as well as for the exercise of some appeals, obviously unfounded, by the same decision by which these requests were solved, to submit in the appeal filed to the superior court, criticisms concerning the judicial fine. In the opinion of the authors, the correct interpretation is that these criticisms can be formulated in the appeal filed to the superior court, together with all the other criticisms regarding the solution of the lower court, when the fine was applied by the same decision by which those requests were solved."

The Persistent Problem of Media Taxation: First Amendment Protection in the 1990S

1997 ◽  
Vol 74 (3) ◽  
pp. 579-590 ◽  
Author(s):  
Cathy Packer ◽  
Karla K. Gower
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Lower Court ◽  
Persistent Problem ◽  
The Supreme Court ◽  
Lower Courts ◽  
Explicit Recognition ◽  
One Step ◽  
The Media ◽  
Substantial Change

This article examines U.S. Supreme Court decisions regarding the constitutionality of taxation of the mass media. It concludes that the Court's 1991 decision in Leathers v. Medlock does not represent a substantial change in the law governing taxation of the media but is one step in the evolution of two distinct lines of media taxation cases. The article also examines how the lower courts have applied Leathers in the six years since it was decided. The lower court decisions uniformly - although not explicitly - recognize the two lines. What is needed now is explicit recognition by both the Supreme Court and the lower courts.

scholarly journals Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap

2018 ◽  
pp. 1
Author(s):  
Steven Penney
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Electronic Text ◽  
Supreme Court Of Canada ◽  
Lower Court ◽  
Reasonable Expectation ◽  
Section 8 ◽  
The Supreme Court ◽  
Oral Communications ◽  
Zero Sum

In R. v. Marakah, a majority of the Supreme Court of Canada decided that senders of electronic text communications maintain a reasonable expectation of privacy over their messages even after they are copied to recipients’ devices. The dissenters argued, in contrast, that any such expectation is objectively unreasonable given senders’ inability to control the messages after delivery. The Supreme Court did not settle the question, however, of whether this expectation can be defeated by a recipient’s voluntary decision to allow police to search his or her own device. Indeed, each side intimated that such a consent would be difficult, if not impossible, to obtain.This article argues, nonetheless, that courts can and should use consent doctrine to avoid the “zero-sum” model of section 8 adjudication that characterizes the majority and dissenting reasons in Marakah. Properly interpreted, that doctrine preserves Marakah’s core holding — that senders do not reasonably expect unfettered state access to their received text communications — while also giving effect to recipients’ autonomous decisions to assist police.However, as with oral communications, a recipient’s consent to disclose a sender’s text communications to police should only defeat the sender’s expectation of privacy over preexisting messages. Contrary to several lower court decisions, this article argues that the acquisition of future, incoming communications from recipients’ devices (with or without consent) invades senders’ reasonable expectations of privacy under section 8 of the Charter and constitutes an “interception” requiring judicial authorization under section 184.2 of the Criminal Code.

scholarly journals The Rise and Fall of Plaintiff-Friendly Causation

2016 ◽  
Author(s):  
Vaughan Black
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Impact ◽  
Do So

Starting about a generation ago, Canadian courts altered the rules governing causation to make them more plaintiff-friendly. However, these changes came to be regarded as misguided. In the 2012 decision Clements v. Clements, the Supreme Court of Canada modified the doctrine, reversing the plaintiff-friendly trend that had defined the law of causation for decades. This article will explore how Clements effectively curtailed the test of causation. It will do so in part by examining the impact it has had on the lower courts in subsequent years.

scholarly journals Let's (Not) Make This Work! Why Stare Decisis Workability Should be a Sword but Not a Shield

2019 ◽  
Author(s):  
Audrey Lynn
Keyword(s):  
United States ◽  
Supreme Court ◽  
Separation Of Powers ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Interpretation ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of

A factor of the United States Supreme Court’s stare decisis test, workability differentiates precedential rules that have proven easy for lower courts to apply in a consistent and fair manner from those that have not. This note addresses the question of whether workability is a legitimate reason for retaining a given interpretation of a statute. The Note begins by providing an illustration of what this Note will sometimes refer to as the “preservative use” of workability. The Note then lays out the history of workability as a consideration of stare decisis and describes how the factor has changed in recent decades. In so doing, its focus is on workability in the context of statutory interpretation. In order to explain the background and development of the factor, however, it is necessary to discuss specific cases in which the Supreme Court has applied workability in the context of constitutional interpretation. The two contexts must be differentiated for purposes of this Note because the thesis of this Note—i.e., that preserving an incorrect interpretation of a statute because of its relative workability violates separation of powers—has no parallel when a court interprets a constitution because in that case there is no inherent infringement on legislative power. This Note then explains why the change toward using workability to preserve erroneous precedent is not required logically, contravenes the basic purposes of stare decisis, and is constitutionally invalid as a violation of separation of powers. Finally, this Note proposes a new way to articulate the stare decisis test that does not discard workability as a consideration but precludes the preservative use criticized by this Note.

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