The Systemic Violation of Section 26(1): An Appeal for Structural Relief by the Judiciary

2017 ◽  
Vol 30 (1) ◽  
pp. 42-70
Author(s):  
S Viljoen
Keyword(s):  
Separation Of Powers ◽  
The State ◽  
Social Consequences ◽  
Fundamental Rights ◽  
Structural Relief ◽  
The Right ◽  
High Level ◽  
Right Of Access ◽  
Complex Housing

In 2014, a year supposedly marked to celebrate twenty years of democracy and the transformation of our housing regime from one being grossly discriminatory to a welfare-orientated legal system that functions under the auspices of the rights and values entrenched in the Constitution the poorest households in South Africa remain subject to not only intolerable housing conditions, but also unlawful state evictions. The housing jurisprudence has developed certain indicators of the state’s constitutional obligations and these indicators constitute the courts’ conception of its expectations of the state in complex housing disputes that generally concern homelessness/landlessness. However, recent state actions taken in contravention of section 26 indicate the systemic violation of the right to the extent that it is deprived of all meaning. With the required cognisance of the courts’ inherent competencies, concerns for separation of powers boundaries and an inclination to maintain a high level of deference in polycentric matters with economic and social consequences for the community, the courts are obliged to hold government accountable and vindicate the violation of fundamental rights. A form of reparation is therefore required that is able to address these violations in a systemic manner, without usurping the functions of the executive. Structural relief is apt in such instances, provided that it is structured in a specific manner to address immediate and long-term housing needs in a way consistent with other constitutional provisions and the underlying values of the Constitution. A once-off form of relief is inappropriate to counter the systemic violation of the right of access to adequate housing.On the other hand, a structural interdict is different to the extent that it can consist of different remedial phases over which the court retains jurisdiction to ensure that the state complies with its section 26(2) obligations. Throughout this process of supervision the court should encourage a dialogue between the different stakeholders and assist with predeterminations of the kinds of governmental actions that would be unreasonable, procedurally unfair and generally in contravention of the Constitution.

scholarly journals A Consistent Inconsistency—An Interpretationof Sections 23 and 56(1) of the Charter of Human Rights and Freedoms of Québec

2016 ◽  
Vol 28 (3) ◽  
pp. 379-403
Author(s):  
Barbara Pierre
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Attorney General ◽  
Supreme Court Decision ◽  
The State ◽  
Fundamental Rights ◽  
The Law ◽  
The Difference ◽  
The Government ◽  
The Right

The writer advocates the view that courts interpret statutes so as to achieve their aim; that being justice in the case: as between the parties and in respect of the law. This is identified as the common thread that explains the apparent erratic behaviour of the courts in their use of the various methods or rules of interpretation. The Supreme Court decision, Attorney General of Québec v. 2747-3174 Québec Inc., is analysed against the background of this theory and is seen to give support to it. The court is shown to use various rules of interpretation, which lead the majority to a wide, and the minority to a narrow, interpretation of the Charter of Human Rights and Freedoms of Québec. Yet it is clear that in both cases the rules are merely a means to an end: justice as between the parties and in respect of the law. In context of the case, this means establishing a balance between the competing interests of the State and the citizen that conforms to the law relating to fundamental rights and in particular, the Charter of Human Rights and Freedoms of Québec. As far as the State is concerned, it has a vested interest in confirming the constitutionality of its many administrative tribunals, which play an essential role in enabling the State to discharge its responsibility to govern. Citizens, on the other hand, need to be protected from the violation of their rights, in particular the right to an independent and impartial tribunal in matters relating to the determination of their rights and obligations, or charges brought against them. The Charter must be interpreted so that, in its scope and content, it gives real protection, but, consistent with the separation of powers doctrine, the interpretation must not amount to a usurpation by the courts of the role of the government to govern. The writer concludes that the opposing conclusions of the majority and minority are more a consequence of the difference in the opinion of the judges as to the manner in which the balance should be struck, as opposed to the rules of interpretation used by them.

Marriage Registration among Palestinians and Syrians in Jordan

2018 ◽  
Vol 6 (3) ◽  
pp. 359-380
Author(s):  
Dina Zbeidy
Keyword(s):  
Legal System ◽  
Public Debate ◽  
The State ◽  
Social Consequences ◽  
Syrian Refugees ◽  
Development Organizations ◽  
Early Registration ◽  
Divorce Rates ◽  
Insight Into

Based on long-term fieldwork in Jordan, this paper discusses two marriage registration practices that have become topics of public debate and locus for intervention projects of development organizations: the early registration of marriages among Palestinian camp residents, and the non-registration of marriages among Syrian refugees. This paper shows how the narratives around marriage registration play a role in the production of identity and senses of belonging and provides insight into the overlaps and gaps between the discourses of development organizations and the concerns of those involved in these practices. In the Palestinian case, the early registration of marriage provides the couple with a limited but important space to get acquainted before the wedding. Women’s organizations and NGOs, however, often blame this practice for the increase in divorce rates before consummation. In the Syrian case, organizations focus on the negative legal and social consequences of not registering a marriage with the state, while conversations with Syrians reveal the obstacles they face while navigating the Jordanian legal system and their need to legitimize their non-registration of marriages.

scholarly journals Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

scholarly journals The protection of personal data in the field of judicial cooperation in criminal matters: special reference to Directive (EU) 2016/680 of the European Parliament and of the Council

2019 ◽  
Vol 5 (2) ◽  
pp. 92-102
Author(s):  
Maria Belén Sánchez Domingo
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Personal Data ◽  
Fundamental Rights ◽  
Public Security ◽  
Judicial Cooperation ◽  
Eu Directive ◽  
The Right ◽  
High Level ◽  
Criminal Matters

The new European framework for the protection of personal data on freedom, security and justice is embodied, among other instruments, in EU Directive 2016/680 on the protection of natural persons with regards to the processing of personal data by competent authorities for criminal law purposes. This Directive protects fundamental rights, such as the right to the protection of personal data, as well as ensuring a high level of public security by facilitating the exchange of personal data between competent authorities within the Union, with the establishment of a legal system on the transfer of personal data.

Ostatni będą pierwszymi? LNG w polityce energetycznej Rosji

2020 ◽  
Vol 18 (4) ◽  
pp. 97-120
Author(s):  
Szymon Kardaś
Keyword(s):  
Energy Markets ◽  
The State ◽  
External Energy ◽  
State Budget ◽  
Russian State ◽  
Internal Structures ◽  
Constant State ◽  
High Level ◽  
The Relationship

The purpose of the article is to analyze the current condition and development prospects for the Russian LNG sector. Taking into account the specifics of the functioning of the Russian state, the author chose the realistic paradigm (neoclassical realism), which is useful in the context of showing the relationship between internal structures and external activity of the state. The author argues that Russian expansion in the LNG sector is the result of the lobbying capacity of Novatek – the largest private gas producer in Russia. Although the state budget incurs significant costs related to the implementation of Novatek projects, in particular due to fiscal preferences, it also achieves the possibility of achieving the objectives in external and internal energy policy. Novatek’s expansion increases Russia’s share in external energy markets; at the same time LNG expansion, it is used for internal purposes. Novatek’s dominant position in the LNG sector is confirmed by both already implemented projects and plans for further expansion. The factors favoring Russian expansion are constant state support for Novatek projects, high level of internationalization of implemented projects and favorable forecasts on energy markets. The strong competition between currently dominant LNG producers and the risk of internal competition between Russian exporters are among the key long-term challenges.

Article 35 CFR

2019 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Health Care ◽  
Medical Treatment ◽  
Human Health ◽  
Preventive Health Care ◽  
Preventive Health ◽  
Health Protection ◽  
The Right ◽  
High Level ◽  
Right Of Access

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.

scholarly journals CONSTITUTIONALISM AND JUDICIALIZATION OF POLITICS: THE “JUDICIAL” RIGHT TO HEALTHCARE IN BRAZIL

2015 ◽  
Vol 3 (3-4) ◽  
pp. 358-393
Author(s):  
Bruno Irion Coletto ◽  
Pedro Da Silva Moreira
Keyword(s):  
Public Policy ◽  
Public Policies ◽  
Public Debate ◽  
The State ◽  
Fundamental Rights ◽  
Scarce Resources ◽  
The Public ◽  
Critical Understanding ◽  
The Right ◽  
The Way

The right to healthcare in Brazil is seriously protected by the courts. Judicialization of everyday implementation of this public policy is a fact. One explanation may be provided by the way judges understand the effectiveness of this right. People hold subjective right to individualized healthcare benefits, and so they hold standing to sue the state in order to achieve it, regardless any consideration of public policies. Through an analysis of the jurisprudence on this issue, this paper aims to provide a critical understanding not just about what is actually happening in Brazilian courts regarding healthcare, but also to criticize it. The conclusion is that a “strong” conception of constitutionalism and fundamental rights may revel itself as “weak,” from the standpoint of general equality. Judicialization ends up empting the public debate, leading the task of solving the distribution of scarce resources to a “gowned aristocracy.” 

Analysis of the concept of «efficiency» and methods for evaluating the effectiveness of enterprises

2020 ◽  
pp. 85-101
Author(s):  
Dmitry I. Zaykin ◽  
Irina V. Kosorukova
Keyword(s):  
Research Result ◽  
External Environment ◽  
Investment Decisions ◽  
The State ◽  
Economic Science ◽  
Minimal Cost ◽  
Advantages And Disadvantages ◽  
The Right ◽  
Comparative Description

Relevance. The article is devoted to the analysis of the concept of «efficiency», which is a rather complex category of economic science. The essence of this concept is revealed. Today, evaluating the effectiveness of enterprises is a necessary requirement for maintaining and improving their competitiveness, and making the right management decisions. The purpose of the study is to develop a system for evaluating performance that would take into account the results of long-term investment decisions and changes in the external environment of enterprises. The objectives of the study are to analyze the modern interpretation of the concept of «efficiency», analyze approaches to assessing the effectiveness of enterprises and determine practically significant approaches to assessing the effectiveness of enterprises. Research result. The analysis of the studied definitions of the concept of «efficiency» has shown that today there is no single interpretation of this category. Common to all definitions is the idea of efficiency as the ability of the system to achieve the goal with minimal cost. As a result of the study, the systematization of the main approaches and methods for evaluating the efficiency of the state of enterprises was carried out. The article presents a comparative description of methods for evaluating the effectiveness of enterprises, which have their own characteristics, advantages and disadvantages, which determines their use in different situations and for different industries. Special attention is paid to modern approaches to assessing the effectiveness of enterprises based on the assessment of strategic efficiency.

scholarly journals Índice de Vulnerabilidade Socioambiental na Área da Gleba “C” da Universidade Federal do Pará, no Município de Belém

2021 ◽  
Vol 14 (4) ◽  
pp. 2322-2337
Author(s):  
Maria Carolina Chaves de Sousa ◽  
Peter Mann de Toledo ◽  
Filipe Gomes Dias
Keyword(s):  
Land Use ◽  
20Th Century ◽  
Social Economic ◽  
Environmental Issues ◽  
The State ◽  
Environmental Vulnerability ◽  
The Social ◽  
Social Environmental ◽  
The Right

At the beginning of the 20th century, urbanization and occupation of privileged spaces at the expense of “lowland” spaces and close to a floodplain. The “lowlands” were occupied by a population, mostly with socioeconomic needs, forming housing groups susceptible to flooding and flooding. To bring the recognition of rights to these occupants, a land regularization work was carried out by the Federal University of Pará - UFPA, together with public entities from the State and the Union. The article aims to present and compare the degree of socio-environmental vulnerability in the area of land C of UFPA in the municipality of Belém, object of land regularization activity, applying indicators and indices related to social, economic, legal and environmental issues. The results show that the degree of vulnerability is high in the years surveyed, concluding that the legal regularization work carried out in the area was only patrimonial, in order to transfer responsibilities for land use to the beneficiary residents and the recognition of the right of that title by law. . Effective land regularization work should involve a set of bodies responsible for the social, environmental, urban and land areas so that, in a concatenated and long-term manner, the work carried out is carried out so that the results are captured by the indicators and that the data decrease the degree of socio-environmental vulnerability in the studied area.

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