scholarly journals CONFLICT OF LAWS IN MALAYSIAN PLURALISTIC SOCIETY: AN EXAMPLE OF ANTINOMY OF LAW IN A DUAL SYSTEM

2017 ◽  
Vol 2 (2) ◽  
pp. 152
Author(s):  
Rusniah Ahmad
Keyword(s):  
Legal System ◽  
Family Law ◽  
Dual System ◽  
Religious Groups ◽  
Way Of Life ◽  
Legal Compliance ◽  
Pluralistic Society ◽  
Federal Constitution ◽  
The Government ◽  
The Right

Malaysia has a complex legal history with a multiracial society in place after the end of British colonization. Its multi-religious presence is another reflection provided in Article 3 of the Malaysian Federal Constitution, “Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation”. The legal system is clearly expressed in its adoption of the constitutional supremacy doctrine and the existence of the three main branches of government with a federal system of government. In so far as family law is concerned the legal system has accommodated this form by acknowledging the unwritten sources of customary laws of the various ethnic communities. However, this accommodation to realized freedom of religion has resulted in a dual system of Family Law. A set of laws and courts for the Muslims and another for the non-Muslims. It was believed that this will not be problematic since the arrangement catered for the rights of all. As Malaysian society become intertwined this arrangement may not be so easy after all. The dual family law has caused conflicting issues to arise especially in divorce proceedings and child custody battles for couples of different ethnic (and religious) groups. This is an antinomy in a pluralistic society with a dual legal system. The values that have been developed and accepted are instill among Malaysians that everyone has the right to enjoy fundamental liberties and freedom afforded by the Federal Constitution and respect is given to all to choose their own faiths and way of life in accordance with the law. This is a challenge not only for the government authorities but to the legal fraternities and judiciary in deriving acceptance and conformity on the legal compliance of all parties concerned.  

scholarly journals PERLINDUNGAN HAK WARGA NEGARA ATAS LINGKUNGAN HIDUP YANG SEHAT DIKAITKAN DENGAN MANFAAT PENERIMAAN NEGARA DARI PRODUKSI ROKOK

2018 ◽  
Vol 1 (1) ◽  
pp. 1328
Author(s):  
Billy Samuel ◽  
Rasji .
Keyword(s):  
Legal System ◽  
Research Method ◽  
Good Health ◽  
Legal Culture ◽  
Public Confidence ◽  
Healthy Environment ◽  
Health Services Need ◽  
The Republic ◽  
The Government ◽  
The Right

Cigarettes is a culture that has existed since time immemorial and has come down to the heir of the nation to this day, cigarettes which initially is a habit that is done to fill the vacuum of time, has now turned into something that makes people dependence on cigarettes. Therefore based on the 1945 Constitution of the State of the Republic of Indonesia in Article 28H paragraph (1) states that the right of citizens to obtain a good and healthy environment, and get good health services, need to be regulated further about health, especially the imposition cigarette. Now cigarettes that use tobacco which is one of addictive substances, has been regulated further by Law Number 36 Year 2009 About Health which is one of the realization of the ideals of the Constitution Article 28H Paragraph (1). However, control isn’t enough, in fact the government only carries the imposition of excise products that containing addictive substances. The research method used is normative legal research method that comes from primary, secondary, and supported by interview with related experts, which is analyzed deductively. In addition, the theory of the legal system not only refers to the substance of the law but also supported the legal culture that is more directed to the attitude of society, public confidence, values adopted by society and their ideas or expectations that determine how the legal system to obtain a place that is appropriate and acceptable to citizens within the framework of better society culture for Indonesia.

Ratifikasi Konvensyen Pertubuhan Bangsa-Bangsa Bersatu terhadap Hak Orang Kurang Upaya: Implikasi dan Realiti dari Dimensi Perundangan dan Kesamarataan

2020 ◽  
Vol 32 (2) ◽  
pp. 297-319
Author(s):  
Norita Azmi ◽  
◽  
Salawati Mat Basir
Keyword(s):  
Human Rights ◽  
Minority Group ◽  
Disabled Persons ◽  
Persons With Disabilities ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Norms And Values ◽  
The Disabled ◽  
The Government ◽  
The Right

Issues related to the disabled right in the country continue to attract criticism and debate, as implementation is very slow and weak. The disabled have the right to live like other normal people, which includes protection in times of danger and emergency. One of the important mechanism for the care of the disabled is through legal means. The government has signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as part of its efforts to empower and protect this minority group. As such, the government has taken the initiative to enact the Persons with Disabilities Act 2008 and ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2010 as one of the government’s commitments in complying with international human rights conventions as long these do not against the Federal Constitution. This article aims to uncover and analyse the legal provisions in Malaysia relating to the disabled and their right to live, as stated in the Federal Constitution and relevant legal provisions. In essence, this shows that Malaysia, as a member of the UN, is bound to adopt international laws and treaties on human rights if these do not violate local norms and values. At the end of the discussion, some ideas are presented as solutions for the government to improve the issue of disabled persons so that in the eyes of the world, Malaysia will be recognized as one of the countries that cares for and defends its disabled, in line with the Convention on the Rights of Persons with Disabilities 2008.

Protecting Freedom of and from Religion: Questioning the Law's Ability to Protect Against Unethical Conversions in Sri Lanka

2006 ◽  
Vol 1 (1) ◽  
pp. 41-73 ◽  
Author(s):  
Alexandra Owens
Keyword(s):  
Human Rights ◽  
Sri Lanka ◽  
Supreme Court ◽  
Legal System ◽  
Case Law ◽  
Recent Case ◽  
Religious Groups ◽  
Minority Religions ◽  
Unequal Treatment ◽  
The Right

AbstractIn recent years, the issue of improper and unethical conversions has attracted much attention in Sri Lanka. The issue is a highly emotive one, with members of the majority Buddhist population calling for measures to protect their religion from 'threats' from other minority religions, and members of these other religious groups expressing growing feelings of discrimination and unequal treatment. This article examines recent case law in the field of unethical conversions in Sri Lanka. An analysis of the decisions of Sri Lanka's Supreme Court relating to the incorporation of Christian organizations suggests that the legal system in Sri Lanka has struggled in its attempt to secure the right to freedom of religion and the right to manifest a religion for all people. Moreover, it is argued that the law has ultimately fuelled the growing religious tensions across the island. This article questions the law's ability to protect against unethical conversions in Sri Lanka, and therefore seeks to add weight to the calls for a non-legislative approach to the issue in order to allow for respect for the human rights of all concerned.

Educational and Social Inclusion of Children Admitted Under RTE Quota: A Survey of Private Schools of Bhopal

2021 ◽  
pp. 138-154
Author(s):  
Indrajeet Dutta ◽  
Maisara Aziz Khan
Keyword(s):  
Private Schools ◽  
Social Inclusion ◽  
Project Work ◽  
Religious Groups ◽  
Disadvantaged Children ◽  
Playing Field ◽  
Small Project ◽  
Education Act ◽  
The Government ◽  
The Right

Status of growth and development of a society is measured by various social indices which depend on upon the equitable opportunities provided by the government in the form of access, participation, and transformation. Surveys in the last one decade, present to us glaring inequalities in social-economic and educational indicators of different socio-religious groups. Whenever policies and programmes do not benefit citizens, the government makes special provisions so that it would benefit them. The Right to Education Act (RTE) and within it 25% Economically Weaker Sections (EWS) quota was one such major intervention. The provision of 25% quota for EWS and disadvantaged children is mentioned in the RTE act section 12(1) (C). Thus, section 12(1)(C) of the RTE acts as a level-playing field for the children who were not able to afford quality education being offered in private schools. In Madhya Pradesh (MP), the RTE act came into effect from 2011. Bhopal the capital of MP had 2258 recognized schools and merely 223 have been covered under the RTE quota. Around 8162 EWS and disadvantaged students are studying in age appropriate classes. The present study was a small project work carried out in 10 schools of Bhopal (urban) covered under the RTE quota. The results indicated that though there is a social and educational inclusion of children in private schools but as per teachers' the ride is not a smooth one based on the responses of the students. Moreover, teachers still have a biased and unfavourable attitude towards these children. The gravity of the problem is not as big in the elite schools as they are not offering the EWS quota.

Human Rights of Indigenous Minorities in Tanzania and the Courts of Law

2007 ◽  
Vol 14 (4) ◽  
pp. 455-487 ◽  
Author(s):  
Chris Maina Peter
Keyword(s):  
Fundamental Rights ◽  
Way Of Life ◽  
Running Water ◽  
High Court ◽  
Modern Development ◽  
Hunting And Gathering ◽  
Indigenous Minorities ◽  
The Government ◽  
The Right ◽  
Court Of Appeal

AbstractTanzania has several indigenous minorities. They include the Maasai, Barbaig, Hadzabe, Ndorobo and others. Some are still engaged in hunting and gathering, while others are pastoralists. The government is unhappy about their way of life and believes that it has a duty to “emancipate” these “backward” people by “civilising” them through bringing “modern development” to areas they live in. This is through the building of schools and hospitals, the provision of running water, etc. In the process of undertaking this mission, it has negatively affected the lives of these groups. It has destroyed their property, and displaced them from their traditional living areas. This has been done in total disregard to their ways of life, traditions, beliefs and above all the right to own property which is guaranteed by the Constitution. Some of the indigenous minorities whose rights have been violated by the government have decided to challenge the violation of their fundamental rights in the courts of law. This paper examines the handling of the cases related to the rights of indigenous minorities by the higher judiciary in Tanzania, particularly the High Court and the Court of Appeal. Experience indicates that, like the government, the judiciary has been sympathetic toward indigenous minorities.

scholarly journals A PRÁTICA DOS “ROLEZINHOS” E O NEODESENVOLVIMENTISMO BRASILEIRO

Revista LEVS ◽  
2015 ◽  
Vol 15 ◽  
Author(s):  
Marcela Andresa Semeghini PEREIRA
Keyword(s):  
Social Recognition ◽  
Freedom Of Movement ◽  
Federal Constitution ◽  
Library Resources ◽  
Social Scene ◽  
Heated Debate ◽  
The Government ◽  
To Come ◽  
The Right ◽  
Article 5

Resumo: Esta pesquisa buscou apresentar as características dos “rolezinhos”, que são movimentos de ocupação de espaço de consumo, buscando a afirmação e reconhecimento social e explicitação das contradições do país. Os praticantes, normalmente são jovens trabalhadores assalariados, advindos de grandes centros periféricos que, através de ações e políticas praticadas no início década de 2000 até os dias atuais, conquistaram a capacidade de consumir, aumentando as possibilidades de lazer e exigindo a inclusão em espaços que antes não frequentavam. O acalorado debate gira em torno da legalidade deste movimento, destacando que dentre os direitos garantidos aos sujeitos praticantes está o direito de ir e vir, este é garantido na Constituição Federal de 1988, de acordo com o disposto no artigo 5°, inciso 15, e no artigo 8º, da Declaração Universal dos Direitos Humanos e o direito à livre manifestação expresso no artigo 5º, incisos IV incluindo o direito de opinião que inclui pensamentos, ideias e opiniões bem como a forma em que são expostas.. O direito ao lazer, disposto no artigo 6º da carta magna é reivindicação deste movimento, sendo este um direito fundamental social. Concluiu-se que o Poder Público, os operadores do direito, a sociedade, as famílias e cada cidadão reflita sobre a aceitação deste novo momento e as possibilidades de políticas públicas de inclusão para atender as demandas que esse novo cenário social exige. Utilizou-se do método dialético, com consultas em fontes bibliográficas como livros, jurisprudência, revistas e entrevistas. Palavras-chave: Desenvolvimento Econômico; Direito; Movimento Social. Abstract: This study aims to present the characteristics of "rolezinhos" which are squatters space consumption, seeking affirmation and social recognition and explanation of the contradictions of the country. Practitioners are usually young employees, arising from large peripheral centers, through actions and policies in the early 2000s to the present day, gained the ability to consume, increasing the possibilities for leisure and requiring the inclusion in spaces that not attended before. The heated debate revolves around the legality of this move, noting that among the rights guaranteed to individuals practicing is the right to come and go, also known as freedom of movement or freedom of movement, this is guaranteed in the Federal Constitution of 1988, according with the provisions of Article 5, section 15, and Article 8 of the Universal Declaration of Human rights. The right to leisure, Article 6 of the Federal Constitution claim is this movement, this being a fundamental social right. It was concluded that the Government, jurists, society, families and individual citizens reflect on the acceptance of this new moment and the possibilities for public policy inclusion to meet the demands that this new social scene requires. We used the dialectical method, in consultation with library resources such as books, jurisprudence, magazines and interviews. Keywords: Economic Development; Right; Social Movement.

scholarly journals O Direito Fundamental Social à Saúde na Constituição de 1988: A Garantia da Dignidade da Pessoa Humana entre o Poder Judiciário e a Ponderação de Princípios

2017 ◽  
Vol 11 (3) ◽  
Author(s):  
Cássio Guilherme Alves ◽  
Caroline Müller Bitencourt
Keyword(s):  
Human Person ◽  
Rio Grande ◽  
Right To Health ◽  
Fundamental Rights ◽  
Rio Grande Do Sul ◽  
Santa Cruz ◽  
Federal Constitution ◽  
Democratic State ◽  
The Government ◽  
The Right

O DIREITO FUNDAMENTAL SOCIAL À SAÚDE NA CONSTITUIÇÃO DE 1988: A GARANTIA DA DIGNIDADE DA PESSOA HUMANA ENTRE O PODER JUDICIÁRIO E A PONDERAÇÃO DE PRINCÍPIOS  The FUNDAMENTAL SOCIAL RIGHT to HEALTH IN THE FEDERAL CONSTITUTION of 1988: the guarantee of HUMAN DIGNITY AMONG the judiciary and the BALANCE of PRINCIPLES  Cássio Guilherme Alves* Caroline Müller Bitencourt**  RESUMO: No presente estudo se buscará a análise da realização do direito fundamental social à saúde no Estado Democrático de Direito, haja vista sua proteção constitucional na Carta de 1988. Após o reconhecimento da saúde como direito fundamental social, imprescindível a criação de mecanismos que garantam sua concretização quando o Estado for ineficiente ou se negar à prestação material necessária. Para fins deste artigo será utilizado o método hipotético-dedutivo com análise das teorias da reserva do possível x mínimo existencial vinculado aos princípios de direitos fundamentais para a garantia do direito à saúde. Dessa forma, o Poder Judiciário enquanto poder constituído possui em sua natureza jurisdicional a competência e prerrogativa para compor conflitos, devendo decidir o caso concreto na esfera da jurisdição constitucional, evitando que sejam cometidos abusos e restrições contra os direitos fundamentais. Assim, o direito fundamental social à saúde possui estreita vinculação com a dignidade da pessoa humana, não sendo possível pensar em vida com dignidade com restrições a este direito. Nessa seara, o Poder Judiciário se apresenta como importante ator na concretização e garantia do direito à saúde quando o Poder Público for ineficiente na sua promoção, devendo agir através da jurisdição constitucional para, com o uso do instituto da ponderação, preservar os direitos fundamentais na garantia do mínimo existencial vinculado à dignidade da pessoa humana no Estado Democrático de Direito. PALAVRAS-CHAVE: Dignidade da Pessoa Humana. Direito Fundamental Social à Saúde. Poder Judiciário. Ponderação de Princípios. ABSTRACT: In this study will seek to analyze the carry out of the fundamental social right to health in democratic State of law, its constitutional protection in 1988. After the recognition of health as a fundamental right, essential to the creation of mechanisms to ensure its implementation when the State is inefficient or refuse to provide necessary material. For the purposes of this article shall be used the hypothetical-deductive method with analysis of theories of possible x existential minimum linked to the fundamental rights to the guarantee of the right to health. In this way, the Judiciary while power constituted has the jurisdiction and prerogative Court nature to compose disputes, and decide the case in the sphere of constitutional jurisdiction, preventing are committed abuses and restrictions against fundamental rights. Thus, the fundamental social right health has close linkage with the dignity of the human person, it is not possible to think of life with dignity with restrictions on this right. In this field, the Judiciary presents itself as an important actor in the implementation and guarantee of the right to health when the Government is inefficient in its promotion and should act through the constitutional jurisdiction to, with the use of weighting Institute, preserving fundamental rights in existential minimum guarantee linked to the dignity of the human person in the democratic State of law. KEYWORDS: Dignity of the Human Person. Fundamental Social Right to the Health. Judiciary. Balance of Principles.  SUMÁRIO: Introdução. 1 A Saúde como um Direito Fundamental Social e sua Vinculação com a Dignidade da Pessoa Humana. 2 A Colisão de Direitos Fundamentais e a Ponderação de Princípios. Considerações Finais. Referências.* Mestrando do Programa de Pós-Graduação em Direito da Universidade de Santa Cruz do Sul (UNISC), Rio Grande do Sul.   ** Doutora em Direito pela Universidade de Santa Cruz do Sul (UNISC), Rio Grande do Sul. Professora do Programa de Pós-Graduação em Direito da Universidade de Santa Cruz do Sul (UNISC), Rio Grande do Sul.

scholarly journals Undang-Undang di Malaysia dan Jaminan Hak Orang Kurang Upaya untuk Bekerja

2016 ◽  
Author(s):  
HIRWAN JASBIR JAAFAR ◽  
HARLIDA ABDUL WAHAB ◽  
NURLI YAACOB
Keyword(s):  
Research Methodology ◽  
People With Disabilities ◽  
Persons With Disabilities ◽  
Legal Studies ◽  
Right To Work ◽  
Normal People ◽  
Federal Constitution ◽  
The Law ◽  
The Government ◽  
The Right

Convention on the Rights of Persons with Disabilities (CRPD) has been signed by Malaysian Government on 8 April 2008. It shows the desire and commitment of the Government of Malaysia to give recognition to the rights of People with Disabilities. The aim of this article is to review the rights to work for Persons with Disabilities under the Federal Constitution and Person with Disabilities Act 2008 in Malaysia. This study will use Legal studies as research methodology and it involved two types of method which is doctrine study of the law and socio-legal studies. The studies showed that the rights to work for PWDs in Malaysia stated as generally in the Federal Constitution and the rights has been detailed in Person With Disabilities Act 2008. The existence of the right to work exclusively under the Person With Disabilities Act 2008 makes those rights not only for normal people but it is also owned by the PWDs. However, the existence of legislation alone is not enough if followed by enforcement. Thus, the improvement in the law and its implementation should be further strengthened through several proposals suggested by this article. It is to ensure the rights of the PWDs to get the job be given serious attention by the community in line with the original purpose of Persons with Disabilities Act 2008 being created.

THE BASTARDIZATION OF ISLAMIC LAW BY THE SOUTH AFRICAN COURTS

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Razaana Denson ◽  
Marita Carnelley ◽  
Andre Mukheibir
Keyword(s):  
South African ◽  
Ad Hoc ◽  
Islamic Law ◽  
Family Law ◽  
Legal Protection ◽  
Muslim Women ◽  
Court Decisions ◽  
Religious Groups ◽  
The Right ◽  
Personal Law

Notwithstanding the fact that South Africa is a country rich in cultural diversity, and despite section 15 of the Constitution, the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. This is particularly true in the case of Muslim marriages. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages has dire consequences for the parties to the marriage, more so for women who are parties to Muslim marriages as there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage. Therefore, in most cases, parties to a Muslim marriage are left without adequate legal protection, where the marriage is dissolved either by death or divorce. The non-recognition of Muslim marriages effectively means that despite the fact that the parties to a Muslim marriage may regard themselves as married, there is no legal connection between them.Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection during the subsistence of the marriage and also when the marriage is dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone some way to redress the plight of Muslim women and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions that are in conflict with Muslim Personal Law (MPL) will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. A discussion of these cases is undertaken in this article.

scholarly journals Sistem Waris Dalam Perspektif Islam dan Peraturan Perundang-undangan Di Indonesia

2018 ◽  
Vol 5 (2) ◽  
pp. 147-160
Author(s):  
Afidah Wahyuni
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Family Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Hereditary System ◽  
Inheritance System ◽  
The Right ◽  
To Receive

Abstract:Inheritance law according to Islamic law is one part of family law (al-Ahwalus Syahsiyah). This science is very important to learn so that in the implementation of the division of inheritance there is no mistake and can be carried out as fairly as possible, because by studying the Islamic inheritance law for Muslims, will be able to fulfill the rights relating to inheritance after being abandoned by Muwarris (heir) and submitted to the heirs who have the right to receive it. Thus, one can avoid sin, namely not eating the property of people who are not their rights, because there is no fulfillment of Islamic law regarding inheritance. The inheritance legal system according to the Civil Code does not distinguish between sons and daughters, between husbands and wives, they have the right to inheritance, and the sons share sons and daughters, the part of a wife or husband is the same as the child. When linked to the hereditary system, the Civil Code adheres to a bilateral descent system, where each person connects himself to the descendants of his father and mother, meaning that heirs are entitled to inherit from the father if the father dies and has the right to inherit from the mother if the mother dies.Keywords: Inheritance System, Islamic Law, Indonesian Legislatio Abstrak:Hukum Kewarisan menurut hukum Islam merupakan salah satu bagian dari hukum keluarga (al-Ahwalus Syahsiyah). Ilmu ini sangat penting dipelajari agar dalam pelaksanaan pembagian harta waris tidak terjadi kesalahan dan dapat dilaksanakan dengan seadil-adilnya, sebab dengan mempelajari hukum kewarisan Islam bagi umat Islam, akan dapat menunaikan hak-hak yang berkenaan dengan harta waris setelah ditinggalkan oleh muwarris (pewaris) dan disampaikan kepada ahli waris yang berhak untuk menerimanya. Dengan demikian, seseorang dapat terhindar dari dosa yakni tidak memakan harta orang yang bukan haknya, karena tidak ditunaikannya hukum Islam mengenai kewarisan. Sistem hukum kewarisan menurut KUHPerdata tidak membedakan antara anak laki-laki dan anak perempuan, antara suami dan isteri, mereka berhak terhadap harta warisan, dan bagian anak laki-laki sama dengan bagian anak perempuan, bagian seorang isteri atau suami sama dengan bagian anak. Apabila dihubungkan dengan sistem keturunan, maka KUHPerdata menganut sistem keturunan bilateral, dimana setiap orang itu menghubungkan dirinya dengan keturunan ayah maupun ibunya, artinya ahli waris berhak mewaris dari ayah jika ayah meninggal dan berhak mewaris dari ibu jika ibu meninggal.Kata Kunci: Sistem Waris, Hukum Islam, Perundang-undangan Indonesia

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