scholarly journals WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

2021 ◽  
Vol 29 (1) ◽  
pp. 1-28
Author(s):  
Wan Ahmad Fauzi Wan Husain
Keyword(s):  
Rule Of Law ◽  
Basic Structure ◽  
Federal Court ◽  
Local History ◽  
The Rule Of Law ◽  
Legal Documents ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Local Courts ◽  
Indian Supreme Court

The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

2019 ◽  
Vol 14 (1) ◽  
pp. 113-145
Author(s):  
Wilson Tze Vern TAY
Keyword(s):  
Rule Of Law ◽  
Basic Structure ◽  
Federal Court ◽  
Judicial Power ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Federal Constitution ◽  
Current Context ◽  
First Time

AbstractIn Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court of Malaysia asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary notwithstanding earlier constitutional amendments, and also gave substantive effect to the ‘basic structure doctrine’ for the first time in Malaysia. This has contributed significantly to the long-standing discussion of whether, and to what extent, the ‘basic structure doctrine’ applies in Malaysia. Situating that landmark decision within the context of the evolving judicial practice in Malaysia and other jurisdictions on the ‘Westminster model’, this article evaluates the extent to which Semenyih Jaya has contributed towards strengthening constitutionalism and the rule of law in Malaysia. Considering that the apex court stopped short of directly invalidating the relevant constitutional amendments, this article argues that Semenyih Jaya represents a sophisticated modification of the ‘basic structure doctrine’ to fit the current context of Malaysian constitutionalism. This article also examines how Semenyih Jaya advances the ‘constitutional dialogue’ between the judiciary and its co-equal branches of government, and assesses the strengths and weaknesses of the approach taken by the Federal Court in that case.

scholarly journals The Principles of Administrative Law as a Prism for Assessing the Content of Normative and Legal Provisions: Opportunities for Identifying the Problems and Solutions

2019 ◽  
Vol 87 (4) ◽  
pp. 104-116
Author(s):  
V. O. Ivantsov
Keyword(s):  
Rule Of Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Charitable Organizations ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
The Law ◽  
The Individual ◽  
Corruption Prevention

The author of the article assesses the content of administrative normative and legal acts (on the example of legal regulation of restrictions on receiving gifts) through the prism of modern understanding of the principles of administrative law, which made it possible to distinguish a number of problems for determining the content of some of them and to work out the ways to solve them, namely: 1) Having studied the norms of the laws of Ukraine “On Prevention of Corruption” and “On Charitable Activities and Charitable Organizations” through the prism of the principle of humanism and justice in the relations between the individual and the state, it is proved that the legal possibility in the sphere of legal relations in the sphere cannot be restricted (forbidden) humanism and charity; 2) an analysis of the law enforcement practice of implementing the prohibition on gift giving has often revealed a flagrant violation of the rule of law; emphasized that ensuring the legal certainty of the described ban can be ensured by revealing its content by the National Anti-Corruption Agency; 3) installed: – uncertainty about the specific characteristics of “allowed gifts”, which requires amendments to the Law of Ukraine “On Corruption Prevention” to exclude them or to provide clear explanations within the framework of the NACC Guidelines; – violation of the provisions of the Typical Anti-Corruption Program of a Legal Entity approved by the Decision of NAPC No. 75 dated from March 2, 2017 No. 75 on the principle of hierarchical highness of law, which requires amendments to them in accordance with the provisions of the Art. 23 of the Law of Ukraine "On Prevention of Corruption", which defines uniform rules for determining the amount of "allowed gift"; – the content of the concept of "gift" does not correspond to such an important element of the rule of law as "prohibition of discrimination and equality before the law", which requires amendments to the Law of Ukraine "On Prevention of Corruption" in the part of the correction of the concept of "gift" as such is bounded by the restriction of "family-private" relations not related to the performance of functions of the state or local self-government. As a result, it was found out that the principles of administrative law in order to improve the regulatory acts of the sphere of administrative and legal regulation are: 1) as a criterion for assessing the content of provisions of regulatory legal acts, resulting in the isolation of their shortcomings; 2) legal bases for elaboration of amendments and additions to administrative normative legal acts.

scholarly journals Problems of interpretation the norms of General part of the Criminal Code of the Russian Federation

2019 ◽  
Vol 13 (2) ◽  
pp. 193-200
Author(s):  
M. P. Рronina ◽  
Keyword(s):  
Rule Of Law ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Code ◽  
Criminal Court ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Legal Provisions ◽  
General Part ◽  
The Russian Federation

The article is devoted to one of the current areas of legal science related to the problems of interpretation the norms of General Part of the Criminal Code of the Russian Federation. The interpretation of legal norms is the activity of state bodies, non-governmental organizations and individuals to clarify and explain the meaning of legal norms embedded by the legislator in them and the actual content of the legal provisions (regulations, definitions) contained in them in order to implement them correctly and improve the effectiveness of legal regulation public relations. The interpretation of legal norms is a complex volitional process aimed at establishing the exact meaning of the rule of law. This process consists of two elements: 1) the interpreter (interpreter) clarifies the content of the legal norm for himself; 2) then in order to establish its equal understanding and application it clarifies the meaning of the legal prescription to all interested parties. The first part of this activity – clarification – characterizes the epistemological nature of interpretation aimed at the knowledge of law. Understanding acts as a thought process taking place in the mind of the subject applying the rule of law. The explanation is the second part of a unified process of interpretation the law addressed to other parties to a relationship. It is carried out by the competent authorities and persons in order to eliminate ambiguities in understanding the content of the norm and thus ensure its correct application to the circumstances for which it is aimed. Subjects of interpretation may be public authorities, officials, organizations, enterprises, institutions, individuals. The objects of interpretation are laws and regulations. Legal interpretation is an activity that from a practical point of view is connected with the completion of the regulation of life relations by law. Legal norms as a result of interpretation become ready for implementation, practical implementation. The presented scientific article examines the interpretations given by the highest judicial instance, which showed that in some cases they contain contradictions that violate the legal and technical rules. Examples of the interpretation of criminal court decisions of the Plenum of the Supreme Court of the Russian Federation are given, and author’s editions are proposed.

scholarly journals Political Corruption, Judicial Selection, and the Rule of Law

1969 ◽  
pp. 654
Author(s):  
F. C. DeCoste
Keyword(s):  
Detailed Analysis ◽  
Rule Of Law ◽  
Political Corruption ◽  
Federal Court ◽  
Public Authority ◽  
Social Implications ◽  
Selection Procedures ◽  
Judicial Selection ◽  
The Rule Of Law

In this article, the author criticizes the current procedures used to appoint Canadian judges to provincial superior courts and to the federal court. The author begins with an examination of political corruption, which in his view depends upon the concept of the Rule of Law. The author proceeds with a detailed analysis of that concept, and concludes that current judicial selection procedures corrupt public authority and judicial office because they violate the institutional, moral, and ethical requirements of the Rule of Law. The author then reflects upon the wider social implications of such corruption.

scholarly journals The european court of human rights practice influence on the national system of Ukraine

2021 ◽  
pp. 32-36
Author(s):  
E.S. Kalyuzhna
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal System ◽  
The Rule Of Law ◽  
National System ◽  
Legal Provisions ◽  
Human Rights Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

Ukraine has recognized the jurisdiction of the European Court of Human Rights by acceding to the Convention for the Protection of Human Rights and Fundamental Freedoms. The implementation of Western concepts of the rule of law, human dignity and human rights stipulates study of the European Court of Human Rights practice, which, in accordance with national law, is the source of Ukrainian law. It is emphasized that the enshrinement of the rule of law principle in a number of laws was accompanied by a normative provision on the necessity to understand the content of this principle through the European Court of Human Rights practice. The purpose of the study is to elucidate the general provisions characterizing the impact of the European Court of Human Rightsice practice on the national system of Ukraine. It is substantiated that the European Court of Human Rights ensures the relevance of the Convention for the Protection of Human Rights and Fundamental Freedoms provisions, compliance of its rules with modernity, ensuring the general spirit of the Convention for the Protection of Human Rights and Fundamental Freedoms which is designed to uphold and ensure the values of a democratic society. It is noted that in interpreting the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights is a kind of subject of legal doctrines making in the field of human rights affecting the legal systems of the states parties to this Convention. Some decisions of the European Court of Human Rights in cases against Ukraine, which played a significant role in changing the national legal system, are analyzed, in particular,the decisions in the cases Koretsky and Others v. Ukraine, Natalia Mykhaylenko v. Ukraine, and Volokhy v. Ukraine. The following legal provisions as the separation of law and the law are mentioned, giving priority to law over the law  in case of contradiction between them; understanding the content of the rule of law, the importance of legal certainty and reasoning of the decision to restrict human rights, legal equality of people, and giving real access to a fair trial to a person, etc. It is concluded that when considering the applicants' complaints about Ukraine's non-fulfillment of its obligations in the field of human rights, the European Court of Human Rights forms legal provisions that become an integral part of the domestic legal system, in some cases they (the decisions) are the factor in changing legislation, and influence the legal doctrine transformation.

The legal framework for the Syrian urban reconstruction

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Antonio-Martín Porras-Gómez
Keyword(s):  
Rule Of Law ◽  
Legal Framework ◽  
Regulatory Capture ◽  
Legal Analysis ◽  
Legal Text ◽  
Content Type ◽  
The Rule Of Law ◽  
Legal Instrument ◽  
Legal Provisions ◽  
Post War

Purpose As the Syrian civil war winds down, the massive reconstruction of the devastated cities has become a recurring subject of political and scientific discussions. A crucial question pervades all these debates: is the current legal framework adequate for confronting the reconstruction challenges in an effective way? With the purpose of understanding and informing the question, this study aims to analyze the most important legal instrument for the Syrian urban reconstruction, Law 10/2018. Design/methodology/approach A functional analysis of the legal text and of its effective implementation is provided. Following a doctrinal legal approach, internal inconsistencies are highlighted, as well as possible “legal gaps” that might allow and favor instances of disrespect of the rule of law and regulatory capture. Findings The main hypotheses discussed are, first, from a descriptive-analytical perspective, that the neoliberal trend in the Syrian political economy underpins the legal framework for the Syrian reconstruction. Second, from a design perspective, that, while offering a strong mechanism for disciplining the Syrian urban planning, Law 10/2018 does not warrant a scenario of respect of the rule of law and seems too easy prey for regulatory capture. Originality/value While the most recent and prominent legal instrument aimed to frame Syrian post-war reconstruction, Law 10/2018, has been subject to multiple policy analyzes and critiques, these have focused almost exclusively on its presumed warchitecture dimension, lacking contextual depth and, most worryingly, ignoring any kind of doctrinal legal analysis. Setting the Law 10/2018 in its legal context is something that has not been done yet, even if, according to their own ontology, legal provisions have to be understood within the context of the legal system they are inserted in. This paper delves into the subject, analyzing the legal text, its juridical context and the way it has been interpreted by the administrative decision-maker while looking at instances where the axiological goals constitutionally proclaimed and legally enshrined might be prevented by the very regulatory configuration.

Rule of Law in Practice

2018 ◽  
pp. 63-104
Author(s):  
Harish Narasappa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Critical Examination ◽  
The Rule Of Law ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Rule Of Life ◽  
Political Understanding

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

scholarly journals PROBLEMS IN THE IMPLEMENTATION OF PROSECUTORIAL SUPERVISION IN THE FIELD OF LAND USE

2020 ◽  
Vol 34 (2) ◽  
pp. 140-144
Author(s):  
V.T. Azizova ◽  
◽  
A.A. Abdullatipova ◽  
Keyword(s):  
Land Use ◽  
Rule Of Law ◽  
Significant Role ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
Legal Documents ◽  
The Law ◽  
The Right

The relevance of the issues discussed in this article is due to the importance of ensuring the preservation of land, the legality of its use and the protection of land in various ways. The Public Prosecutor 's Office has a significant role to play in this process, which has the right to detect violations of the law in this area, to contribute to their prevention, as well as to bring the perpetrators to various types of responsibility. The purpose of the article is to consider the activities of the Public Prosecutor 's Office in this area, to identify difficulties in this activity and to develop proposals to overcome the identified problems. In conclusion, the following conclusions are made: 1) in addition to prosecutors, the rule of law process in the field of land use should involve all bodies whose activities are related to this area to some extent; 2) the relevant activities of the Public Prosecutor 's Office in the field of land use are to verify the legality of legal documents in this sphere, the activities of supervisory bodies with powers in the field of land use, compliance with the legislation by all parties to land legal relations; 3) the most common types of offences identified by prosecutors in this sphere are the absence of documents for land plots, self-capture of land plots, violation of procedure and legality of allocation of land plots

scholarly journals The Constitutional Power Of The Executive in The Age of Rule of Law: A Comparative Study on Malaysia and Indonesia

2020 ◽  
Vol 3 (2) ◽  
pp. 75-83
Author(s):  
Norazlina binti Abdul Aziz ◽  
Rosa Ristawati
Keyword(s):  
Rule Of Law ◽  
Executive Branch ◽  
Executive Power ◽  
Structured Interviews ◽  
Legal Cases ◽  
The Rule Of Law ◽  
Important Principle ◽  
Legal Provisions ◽  
The Government ◽  
Reliable Mechanism

The rule of law sets as an important principle entrenched in the Constitution of Malaysia and Indonesia. This principle stand as a guardian against abuse of power by the government as nobody shall be above the law. This paper examines the practices of the executive power relating to decision-making policy, execution of power and enforcement activities in Malaysia and Indonesia. It also analyses how the executive branch perfoms the powers in accordance to the rule of law. It mainly focuses on the institutional framework of the head of the government and head of state. The analysis allows for identifications of issues and proposals on the enhancement of the executive branch in both countries that would increase the quality of state administration as well as promoting the rule of law. The study adopts a normative method where the fundamental discussions are based on normative approach with content analysis approach on the constitutional and legal provisions, legal cases, circular and directive. The data acquired through doctrinal study is supported by semi-structured interviews with respondents that have been selected through purposive approach. This article concludes that the executive branch plays important roles in promoting the rule of law in both countries. The Constitution, in this case, provides constitutional limitation for the institutional branch of the executive to perform its powers. In the age of rule of law, the executive powers has to be limited. There is no power without limits. The laws has to provide a clear legal direction and reliable mechanism of checks and balances to govern the exercise of the  executive powers.  

Official Language and Rule of Law: Official Language Legislation and Policy in Vojvodina Province, Serbia

2008 ◽  
Vol 15 (4) ◽  
pp. 457-488 ◽  
Author(s):  
Tamás Korhecz
Keyword(s):  
Rule Of Law ◽  
Language Use ◽  
Mother Tongue ◽  
Essential Element ◽  
Minority Languages ◽  
Language Rights ◽  
Official Language ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
Vojvodina Province

AbstractLanguage is much more than a simple tool of communication; it is an essential element of group identity. Nations, ethnic groups, cultures are hardly imaginable without a common language. In a multiethnic country by choosing one “official language” the state in many respects favours the users of that language and discriminates those citizens whose mother tongue is different from the official language. The real and demanding issue is how to obey the principles of the rule of law in the case of the official language in a multiethnic state. Serbia, and its uniquely multiethnic Vojvodina province, has a rich and developed legislation concerning official language use, including the official language use of minorities. Although, the Constitution and actual legislation render the Serb language as the primary official language of the country, minority languages could be officially used as well in areas inhabited by minority populations. Notwithstanding the existing shortcomings of the relevant legislation, the principle of the rule of law is violated much more by the actual practice and poor implementation of relevant legal provisions. Fact and figures prove that many language rights are not implemented because of a lack of human resources, executive activities and financial and organisational measures for implementation. In order to make substantial progress in the field of implementation of minority language rights it is necessary both to modify and harmonise the relevant legislation and also to put into effect organisational, executive and financial measures which can make the rules a living practice. It is also important to differentiate between various minority languages and various individual situations and to take into account the actual needs of minorities, the possibilities of the administration and so-called acquired language rights.

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